US v. Cheely

• Decision Date: 16 November 1992
• Docket Number: No. A92-073 Crim.,A92-073 Crim.
• Citation: 814 F. Supp. 1430
• Parties: UNITED STATES of America, Plaintiff, v. Raymond D. CHEELY, Jr., Douglas P. Gustafson, and Peggy Gustafson Barnett, Defendants.
• Court: U.S. District Court — District of Alaska

814 F. Supp. 1430

UNITED STATES of America, Plaintiff, v. Raymond D. CHEELY, Jr., Douglas P. Gustafson, and Peggy Gustafson Barnett, Defendants.

No. A92-073 Crim.

United States District Court, D. Alaska.

November 16, 1992.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Wevley Wm. Shea, U.S. Atty., Mark H. Bonner, Dept. of Justice, Joseph W. Bottini, Crandon H. Randell, Asst. U.S. Attys., Anchorage, AK, for U.S.

Nancy Shaw, Federal Public Defender, Anchorage, AK, for Raymond D. Cheely, Jr.

Carmen L. Gutierrez, Anchorage, AK, for Douglas P. Gustafson.

Phillip Paul Weidner, Law Offices of Phillip Paul Weidner & Associates, Inc., Anchorage, AK, for Peggy Gustafson-Barnett.

ORDER

SINGLETON, District Judge.

Raymond D. Cheely, Jr. ("Cheely"), Douglas P. Gustafson ("Douglas") and Peggy Gustafson-Barnett ("Peggy") were jointly charged in a multi-count indictment. In substance, the government alleges that the defendants conspired to mail an explosive device, mailed the device, and thereby accomplished the death of its recipient. Cheely, Douglas and Peggy join in a number of pre-trial motions, and in addition, each has separately filed motions on his/her own. All pre-trial motions were initially assigned to a Magistrate Judge, who read the parties' briefs, held evidentiary hearings, heard oral argument and rendered reports and recommendations. Various parties have tendered objections to those recommendations, and the matters are before me for decision. Motions to change venue have been granted, and Judge Fitzgerald will be trying Cheely and Douglas. Peggy's case has been reassigned to Chief Judge Manuel L. Real of the Central District of California. Trial is scheduled to begin before Chief Judge Real in Los Angeles on Tuesday, December 1, 1992. I will therefore be careful to set forth my conclusions in full. I do this because anything I decide will become the law of this case, and I do not wish the parties or a successor judge to be unclear regarding what was decided. See Richardson v. United States, 841 F.2d 993, 996 (9th Cir.1988), amended, 860 F.2d 357 (discussing the doctrine of the law of the case in the Ninth Circuit).

SUBJECT MATTER JURISDICTION

Before addressing the motions, it is necessary to consider the government's claim that this court lacks subject matter jurisdiction over Cheely and Douglas. See, e.g., government's memorandum at Docket No. 324 at 2 n. 1. The government has appealed this court's determination that the statutes under which Cheely and Douglas are being prosecuted would not permit the imposition of the death penalty without violating the United States Constitution. See Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), reh'g denied, 409 U.S. 902, 93 S.Ct. 89, 90, 34 L.Ed.2d 163, 164. The effect of this court's order was to prevent the government from submitting the issue of capital punishment to the jury and to give notice that it would not instruct on capital punishment. The order was thus an order in limine.

Generally, when an appeal is taken from a final judgment in a federal civil case, and by reasonable extension in a criminal case, jurisdiction over the case is transferred to the appellate court and the trial court loses jurisdiction over the case. See Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 402, 74 L.Ed.2d 225 (1982). A final judgment is one that disposes of all the issues in a case and brings it to an end. All other orders are interlocutory. See Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). Nevertheless, the Supreme Court has granted finality for purposes of appeal to certain orders which it deems to be collateral orders, when it finds that such orders are separate and distinct from the merits of the case and, unless reviewed prior to a final judgment, will deprive a litigant of basic rights. Abney, 431 U.S. at 657, 97 S.Ct. at 2039; see Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-46, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949).

Where a party appeals a collateral order, the trial court only loses jurisdiction if a stay is granted. Britton v. Co-op Banking Group, 916 F.2d 1405, 1411-12 (9th Cir.1990). Where a party appeals an interlocutory order, the trial court only loses jurisdiction as to the precise issue appealed. Id. at 1412. This circuit has applied these general rules to government appeals in criminal cases. See United States v. Gatto, 763 F.2d 1040, 1049-50 (9th Cir.1985); accord, United States v. White, 846 F.2d 678, 693 n. 23 (11th Cir.1988), cert. denied, 488 U.S. 984, 109 S.Ct. 537, 538, 102 L.Ed.2d 568. In this case, the precise issue appealed is whether Cheely and Douglas can be executed under existing laws if convicted. This court has no jurisdiction to modify its earlier decision regarding this issue, since to do so would present the appellate court with a "moving target." Britton, 916 F.2d at 1411-12, citing McClatchy Newspapers v. Central Valley Typo. Union No. 46, 686 F.2d 731 (9th Cir. 1982), cert. denied, 459 U.S. 1071, 103 S.Ct. 491, 74 L.Ed.2d 633 (trial court may not reverse own order while that order is on appeal, even if convinced earlier order was erroneous). In all other respects, this court has jurisdiction to proceed to trial despite the appeal unless a stay is ordered.

This court never found, and the parties never cited, a specific rule or case decision governing standards for determining when to stay trial in a criminal case while the government prosecutes an appeal. The court therefore applied the general rules governing stays on appeal set forth in Hilton v. Braunskill, 481 U.S. 770, 776-78, 107 S.Ct. 2113, 2119-20, 95 L.Ed.2d 724 (1987); Artukovic v. Rison, 784 F.2d 1354, 1355 (9th Cir.1986). I determined that the government was not likely to prevail on appeal, and that although significant issues were raised, a balancing of hardships and consideration of the public interest militated against a stay of trial. Artukovic, 784 F.2d at 1355. I therefore denied the stay and scheduled the case for trial. The government sought a writ of prohibition in the appellate court, which that court treated as a renewal of the motion for a stay. Applying the same standards but exercising its independent judgment, the three member panel hearing the case denied the stay and directed that the case proceed to trial in an unpublished memorandum order. United States v. Cheely, et al., No. 92-30257 Order (September 3, 1992).

This court therefore has jurisdiction over this case, over the trial and over any pretrial motions, except that it lacks jurisdiction to change its decision regarding the death penalty. Because the Ninth Circuit has independently considered the criteria governing stays and denied a stay, that decision is probably binding on this court under the doctrine of the law of the case, and on this record could not be modified. See Richardson, 841 F.2d at 996. Even if I did have the power to reconsider my order denying a stay, I find nothing in the current record which would persuade me to do so.¹

CRIMINAL MOTION PRACTICE IN THE DISTRICT OF ALASKA

All three defendants have requested that an evidentiary hearing be granted de novo. See Docket Nos. 581 and 582. Therefore, I will begin by discussing the rules governing motion practice in criminal cases in the District of Alaska. Federal Rule of Criminal Procedure 47 gives trial judges substantial discretion in adopting procedures governing motion practice. In this district, the court has exercised its discretion in favor of very formal procedures. See Local Criminal Rule 10, which incorporates by reference the Local General Rules "where applicable," i.e., where no specific criminal rule governs; and Local General Rule 5, which generally governs motion practice.² The rule requires "a clear, concise, complete and candid written statement of the reasons in support thereof and in opposition thereto," Rule 5(B)(1)(b) and Rule 5(B)(2)(b). How thoroughly a lawyer must support a motion depends on which of her contentions of fact and law will be disputed. If there will be no dispute and her opponent is merely being dilatory, a brief explanation will suffice. A lawyer should never make a motion unless she has first consulted her opponent and sought an informal agreement. Where it is clear that no agreement can be reached, and that the facts will be disputed and the law debated, more formal procedures must be followed. In practice, this requires the parties to put all of the historical facts³ upon which they rely in writing so that the court can review the matter and determine whether oral argument or an evidentiary hearing is warranted. Whether to hear oral argument is discretionary with the trial court. Local General Rule 5(C)(1).⁴ Whether to hold an evidentiary hearing is also a matter of discretion with the trial court. Center Art Galleries-Hawaii, Inc. v. United States, 875 F.2d 747, 754 (9th Cir.1989). Generally, an evidentiary hearing is only required if the papers submitted in support of and in opposition to the motion are sufficiently definite, specific, detailed, and nonconjectural to enable the court to conclude that there are contested issues of fact going to the validity of the search or to the resolution of other issues necessary to decide the motion. Center, 875 F.2d at 754; United States v. Batiste, 868 F.2d 1089, 1091 (9th Cir.1989). As one court stated, evidentiary hearings need only be held when, "the allegations in the moving papers, including affidavits if any are filed, are sufficiently definite, specific, detailed, and nonconjectural, to enable the court to conclude that a substantial claim is presented." Cohen v. United States, 378 F.2d 751, 760-61 (9th Cir.1967), cert. denied, 389 U.S. 897, 88 S.Ct. 217, 19 L.Ed.2d 215.⁵ If the affidavits and other evidence submitted by the opposing parties show as a matter of law that the defendant is or is not entitled to relief, no...