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United States v. Raymond D. Cheely, Jr. Douglas P. Gustafson
Citations: 21 F.3d 914; 94 Cal. Daily Op. Serv. 2493; 94 Daily Journal DAR 4766; 1994 U.S. App. LEXIS 6978; 1994 WL 116868Docket: 92-30257, 92-30504
Court: Court of Appeals for the Ninth Circuit; April 11, 1994; Federal Appellate Court
The United States Court of Appeals for the Ninth Circuit addressed an interlocutory appeal from the government concerning pretrial rulings by the district court. The court ruled that Raymond D. Cheely, Jr. could not face the death penalty and that his statements to postal inspectors were inadmissible due to a violation of his Miranda rights. The government challenged these decisions, which were significant as they affected the trial proceedings, including the potential for capital punishment and jury selection processes. The district court had previously directed the parties to consider capital punishment provisions, noting that if the death penalty were applicable, Cheely would receive additional rights such as extra peremptory challenges and dual legal representation. Conversely, the government would be permitted to pursue a "death qualified" jury. The Ninth Circuit confirmed its jurisdiction under 18 U.S.C. § 3731 and upheld the district court's rulings. The court found the capital sentencing provisions unconstitutional and affirmed the suppression of Cheely's statements. The background of the case involved Cheely and Douglas P. Gustafson, who were convicted of murder in 1991 and subsequently indicted for plotting to kill a key witness. Their alleged actions included constructing a mail bomb intended for the witness's family, resulting in the death of David Kerr and serious injury to his wife. The court highlighted that challenges to capital statutes are reviewed de novo, emphasizing the legal implications of the district court’s rulings on the upcoming trial. Prior to the Supreme Court's decision in *Furman v. Georgia*, juries had nearly unfettered discretion in imposing death sentences. *Furman* established that arbitrary death sentencing violates the Eighth and Fourteenth Amendments, categorizing it as cruel and unusual punishment. It declared that capital punishment is unconstitutional if imposed in a "wantonly and freakishly" manner. Following *Furman*, death penalty laws must ensure that the punishment is proportionate to the crime and must narrow the class of defendants eligible for the death penalty. Furthermore, such statutes must allow consideration of mitigating evidence regarding the defendant's background and the circumstances of the offense. The narrowing requirement can be met either by legislatively defining capital offenses more restrictively or by allowing juries to make findings of aggravating circumstances during sentencing. The government seeks the death penalty for Cheely under two statutory provisions: 1) 18 U.S.C. § 844(d), which penalizes the transportation of explosives with intent to cause harm and allows for a death sentence if death results, and 2) 18 U.S.C. § 1716(a), which prohibits mailing explosives and provides for the death penalty if the mailing leads to someone's death. Both statutes impose significant penalties, including substantial fines and long imprisonment terms. Provisions of 18 U.S.C. Sec. 1716(a) (1988) authorize the death penalty for a wide range of individuals, including those who may only be guilty of involuntary manslaughter, if their actions—such as mailing explosives—result in death. An example illustrates this: if two individuals conspire to use an explosive to damage property, and it accidentally kills someone, both could face the death penalty. This raises constitutional concerns regarding disproportionate sentencing, particularly as one jury could impose the death penalty in one case while another jury might not in a different scenario involving a paid assassin. The lack of guidance for juries in distinguishing between death-eligible defendants leads to potential for arbitrary and irrational sentencing, contradicting precedents established in Furman v. Georgia. The sections in question fail to provide the necessary statutory narrowing that was deemed adequate in previous Supreme Court cases, such as Lowenfield and Jurek, which upheld capital sentencing schemes that included specific aggravating factors. Unlike these schemes, sections 844(d) and 1716(a) do not require juries to identify aggravating circumstances nor do they limit their scope to murderers, thereby including individuals guilty of lesser offenses. The government's claim that focusing on mail bomb usage sufficiently narrows the death-eligible class misinterprets legal standards for narrowing, which must go beyond mere categorization to ensure meaningful distinctions among defendants. Narrowing the class of death-eligible defendants is crucial to prevent the arbitrary imposition of the death penalty, which can lead to cruel and unusual punishment. The current statute fails to adequately limit this class, allowing juries to make life-or-death decisions among a diverse group with varying levels of culpability, resulting in potential aberrational verdicts. The dissent’s assertion that Congress's jurisdictional limitations suffice for narrowing is rejected; the focus must be on specific aggravating factors rather than jurisdictional aspects. The government claims that certain sections of the law sufficiently narrow the death-eligible class by targeting those who pose a risk to multiple individuals or kill public officials. However, these sections do not impose necessary findings that would genuinely narrow the class, as upheld in previous cases like Jurek and Lowenfield. Additionally, precedents such as United States v. Harper, which found capital sentencing under the Espionage Act unconstitutional, support the conclusion that the death penalty provisions under sections 844(d) and 1716(a) are similarly deficient. Ultimately, the court affirms that the death penalty provisions in 18 U.S.C. §§ 844(d) and 1716(a) are unconstitutional for failing to genuinely narrow the eligible class, thus allowing for arbitrary imposition. In a related factual background, on September 20, 1991, postal inspectors visited Cheely at a pretrial facility following a mail bomb explosion. They executed a search warrant for evidence related to the bombing and informed Cheely of his rights using a standardized form consistent with legal precedents. Cheely acknowledged his rights and signed the warning section of Form 1067 but declined to sign the waiver section, which stated he did not want a lawyer and understood his rights without coercion. During questioning, Cheely informed the inspectors that his attorney had advised him not to speak. Both inspectors testified consistently about Cheely's reluctance to sign the waiver and his appreciation for their visit. Cheely expressed a desire to communicate about a prior incident with the Anchorage Police Department. When the inspectors began taking notes, Cheely reiterated his attorney's advice against talking and showed concern about the note-taking, leading to the cessation of note-taking. Although Cheely did not confess, he made several incriminating statements during a two-hour conversation with the inspectors. The district court's decision to suppress Cheely's statements was based on the determination that there was no valid waiver of his Miranda rights, categorizing the encounter as custodial interrogation, which required Miranda warnings due to the nature of the questioning by government agents outside the prison regarding matters unrelated to his imprisonment. The text clarifies that mentioning an attorney does not automatically invoke the right to counsel, and that a formal waiver is not strictly necessary to establish waiver. Cheely's written acknowledgment of his rights, refusal to sign the waiver on Form 1067, and his statement that his attorney advised against talking to the authorities constitute an invocation of his rights under Edwards v. Arizona. Thus, Cheely cannot be further interrogated until he has access to counsel. His continued responses to questioning do not imply a waiver of this right. The inspectors' inquiry about Cheely's willingness to talk against his attorney's advice was improper as it occurred after he invoked his right to counsel. Even if the government argues that Cheely meant to suggest he might disregard his attorney's advice, the inspectors' follow-up questions were not aimed at clarifying his intent but were instead considered interrogation. The inspectors did not make a genuine effort to clarify, which is necessary for any valid questioning post-invocation. Additionally, the statute 18 U.S.C. Sec. 3501, allowing for the admissibility of voluntary confessions, does not override the Edwards ruling. Cheely's subsequent statements were deemed "unconstitutionally elicited" after he invoked his right to counsel, rendering their voluntariness irrelevant. The district court's conclusion that the death penalty provisions in 18 U.S.C. Secs. 844(d) and 1716(a) are unconstitutional was upheld, and Cheely’s motion to suppress was granted. The dissenting opinion contends that Congress's death penalty provisions are constitutional as they apply to particularly heinous acts. Cheely was indicted for his involvement in a mail bomb incident that resulted in a fatality and injury, highlighting the serious nature of the charges against him. Count 4 of the indictment alleges that on September 13, 1991, in Alaska, defendants Raymond D. Cheely, Jr., Douglas P. Gustafson, Peggy Gustafson Barnett, and Craig A. Gustafson transported an explosive via U.S. mail, intended to detonate upon opening, addressed to George Kerr. This act was done with the knowledge that it would kill, injure, or intimidate an individual, resulting in the death of David L. Kerr, thus violating Title 18, U.S. Code, Sections 1716(a) and 844(d). Cheely is specifically charged with the intent to kill in both counts of the indictment. The text emphasizes the presumption of constitutional validity of Sections 844(d) and 1716(a), asserting that courts must uphold legislative determinations unless they are found to be cruelly inhumane or disproportionate. The Supreme Court’s decision in Gregg v. Georgia is cited, highlighting that the burden lies on those challenging the statutes to prove their unconstitutionality. Cheely argues that the statutes are overly broad and fail to narrow the class of individuals subject to the death penalty, potentially leading to arbitrary application. However, the responsibility to demonstrate the unconstitutionality of these statutes lies with Cheely, who has not fulfilled this burden. The majority’s view aligns with the concern that the statutes could allow a jury to arbitrarily recommend the death penalty across varied levels of culpability, which could violate the Eighth Amendment as interpreted in Furman v. Georgia. The majority's analysis conflates two distinct legal requirements: the necessity for statutes to narrow the class of individuals eligible for the death penalty and the prohibition against disproportionately harsh punishment. In Coker v. Georgia, the Supreme Court ruled that the death penalty is excessive for the crime of rape. The majority contends that the statutes at issue permit the death penalty for individuals for whom this punishment would be disproportionate, indicating failure to narrow the eligible class. However, this analysis pertains to proportionality, which is satisfied in this case, as the defendants are charged with premeditated murder, aligning with Supreme Court standards. Additionally, the majority overlooks that Cheely is charged with deliberate, premeditated murder, not involuntary manslaughter, contrasting with their hypothetical scenario. They suggest that a death sentence would be irrational for someone unintentionally causing death in an academic protest; however, the court lacks jurisdiction to address such hypothetical scenarios and can only adjudicate actual cases with concrete interests. The constitutionality of the statutes allowing death for intentional killings is the primary issue, and Cheely cannot challenge them based on potential unconstitutional applications to others. Hypothetical examples, like the protestor scenario, are not relevant under existing legal precedents. The excerpt also references the evolution of Eighth Amendment jurisprudence, noting that the challenged statutes meet the narrowing requirement established in Furman v. Georgia. Furman highlighted the need for statutes to guide jury discretion in sentencing. The Supreme Court has since clarified that the narrowing function can be achieved through crime definitions or specified aggravating circumstances during sentencing. Following the Supreme Court's ruling in *Furman v. Georgia*, which found capital punishment procedures unconstitutional, Georgia amended its laws to limit jury discretion in death penalty cases. While the definitions of felonies eligible for the death penalty remained unchanged, the 1972 legislation mandated that juries identify specified aggravating circumstances before imposing a death sentence. The statute allowed consideration of nonstatutory aggravating or mitigating circumstances, although it did not define these terms. If the death penalty was imposed, the jury or judge was required to specify the aggravating circumstances found. In *Gregg v. Georgia*, the Supreme Court examined the constitutionality of these new sentencing procedures. It addressed whether the death penalty for murder constituted "cruel and unusual punishment" under the Eighth and Fourteenth Amendments and concluded that it did not. The Court also assessed whether Georgia's 1972 statute rectified the issues identified in *Furman*, which highlighted the risk of arbitrary and capricious imposition of the death penalty. The Court determined that Georgia's new procedures sufficiently directed and limited jury discretion, focusing on the specifics of the crime and the defendant's characteristics. Unlike the previous system, which allowed for arbitrary sentencing, the revised procedures required juries to find at least one statutory aggravating factor, thereby constraining their discretion and reducing the potential for capricious outcomes. In Branch v. Texas, consolidated with Furman v. Georgia, the U.S. Supreme Court found Texas' capital punishment system unconstitutional. In response, Texas revised its death penalty statute, restricting capital homicide to specific offenses, including the murder of peace officers, murders during certain felonies, and murders committed by inmates against prison personnel. A new jury procedure was established for cases of capital homicide, requiring jurors to answer three questions regarding the defendant's conduct and likelihood of reoffending. If jurors answered affirmatively to all questions, the death penalty was imposed; otherwise, life imprisonment followed. In Jurek v. Texas, the petitioner was sentenced to death for murdering a woman during a kidnapping and rape. The jury confirmed that the murder was deliberate and that the defendant posed a continuing threat to society. On appeal, the petitioner argued that the revised Texas statute maintained arbitrary elements previously deemed unconstitutional. The Supreme Court rejected this, noting that although Texas did not specify statutory aggravating circumstances like Georgia and Florida, it effectively narrowed the category of murders eligible for the death penalty, thus addressing concerns of arbitrariness. The Court emphasized that the key distinction was that Texas allowed the death penalty for a smaller class of murders. Sentencing authorities must focus on the specific nature of the crime for capital cases. The Texas statute effectively narrows the class of murderers eligible for the death penalty. To comply with constitutional mandates for individualized sentencing, juries must consider all relevant evidence, including arguments for and against imposing a death sentence. Although Texas law does not explicitly mention mitigating circumstances, the Texas Court of Criminal Appeals has interpreted it to allow defendants to present mitigating evidence. The Supreme Court upheld the Texas statute, emphasizing that one of five aggravating circumstances must be established for a capital murder conviction, and that juries can consider any mitigating evidence presented by the defense. This procedural framework aligns with that of Georgia and Florida, ensuring that death sentences are not imposed arbitrarily. Similarly, in reviewing Louisiana’s death penalty scheme, the Supreme Court noted that Louisiana law categorizes homicide into five grades, with first-degree murder being restricted to a narrower set of circumstances that involve specific intent to kill or cause great bodily harm under defined conditions. After a jury finds an individual guilty of first-degree murder in Louisiana, a separate proceeding is held for sentencing, where the jury must determine if at least one statutory aggravating circumstance exists beyond a reasonable doubt. If such a circumstance is not proven, the jury can only impose a sentence of imprisonment without parole, probation, or suspension. In the case of Lowenfield, the petitioner was convicted of three counts of first-degree murder, with intent to kill or harm multiple victims. During sentencing, the jury established the presence of an aggravating circumstance: the offender knowingly created a risk of death or great bodily harm to more than one person. The Louisiana statutes regarding the aggravating circumstances and the definition of first-degree murder were interpreted in a parallel manner. The petitioner appealed the death sentence, arguing that the aggravating circumstance merely repeated an element of murder, thus violating the Eighth Amendment. The Supreme Court rejected this argument, affirming that narrowing the definition of capital offenses can occur either through legislative definitions or by requiring jury findings of aggravating circumstances. The Court upheld Louisiana's death penalty system as constitutional, stating it adequately limited the jury's discretion and complied with the Eighth and Fourteenth Amendments. The ruling clarified that while juries must not act arbitrarily in recommending death, state laws guiding discretion in capital cases are permissible, provided they require explicit findings of aggravating circumstances to narrow the eligible class for the death penalty. The Court in Jurek determined that states can limit jury discretion in death penalty cases by defining specific categories of murders eligible for capital punishment without requiring aggravating circumstances. This approach was upheld in Lowenfield, affirming that death penalty statutes may restrict the jury's discretion during both the guilt and penalty phases. However, each capital sentencing system requires individual assessment, as noted in Gregg. The federal statutes at issue in Cheely’s case restrict capital punishment to particularly heinous homicides rather than encompassing all forms of murder indiscriminately, which would violate the principles established in Furman v. Georgia. Congress's powers do not extend to creating broad homicide statutes, as these fall under state jurisdiction per the Tenth Amendment. Instead, Congress can only enact narrowly defined capital crime statutes while adhering to the Eighth Amendment. Cheely contends that the relevant sections (844(d) and 1716(a)) are unconstitutional due to their pre-Furman enactment, a view seemingly supported by the district court. The trial judge noted that Congress did not specifically address Furman's concerns when these statutes were created, and the majority opinion implied that all federal statutes enacted before Furman are inherently unconstitutional. The majority's novel proposition relies solely on Chief Justice Burger's dissent in Furman v. Georgia, where he speculated that the plurality opinion would necessitate a comprehensive re-evaluation of capital punishment laws by state legislatures and Congress. Burger's dissent suggested that the plurality effectively invalidated all existing death penalty statutes not reviewed by the Court, yet he provided no supporting authority for this assertion. Furthermore, it is argued that a dissenting opinion's predictions about the consequences of a majority's constitutional interpretation lack precedential value. Chief Justice Burger could not foresee the subsequent developments in death penalty jurisprudence, such as the Supreme Court's later decisions in Gregg v. Georgia and Jurek v. Texas, which established that death penalty statutes are presumed valid and that substantial burdens exist for those challenging their constitutionality. Additionally, the Court's rulings clarified that a statute can comply with the Eighth Amendment by narrowly defining capital offenses without requiring the jury to find aggravating circumstances. The assertion that Furman invalidated all unchallenged state and federal statutes is contradicted by the Court's later instruction in Gregg that each capital sentencing system must be evaluated individually. In this context, the sections 844(d) and 1716(a) were examined and found to meet the narrowing standard established in Jurek and Lowenfield. The Supreme Court indicated that the constitutional requirements set forth in Furman can be satisfied by limiting the discretion of the fact-finder through specific definitions of capital crimes or aggravating circumstances. The enacted sections confine capital punishment to individuals who have intentionally killed using a mail bomb, thereby narrowly defining the applicable class of offenders. No further narrowing of definitions is necessary regarding the targeted conduct of killers using concealed lethal devices. Congress, through sections 844(d) and 1716(a), specifically aimed at a distinct category of killer—the assassin who kills from a distance. The argument that a jury might arbitrarily recommend the death penalty for a person guilty only of involuntary manslaughter is unfounded, as the statutes prevent arbitrary jury discretion, and Cheely has not met the burden of proving an Eighth Amendment violation. The majority's reliance on United States v. Harper as a precedent for declaring the mail bomb statutes unconstitutional is misplaced. In Harper, the charges involved espionage with broad application allowing for severe penalties without necessary demonstration of harm. Conversely, the mail bomb statutes require clear proof of intent to kill or injure and actual resulting death, thus narrowly defining the conduct for which the death penalty can be applied. This specificity aligns with constitutional standards upheld in prior cases, indicating that the statutes are constitutionally valid. Consequently, amendments to these statutes post-Furman are unnecessary, and Cheely has not sufficiently challenged the constitutionality of the penalties as established by Congress. Additionally, the statutes do not need to explicitly mandate the consideration of mitigating evidence. Cheely claims that the mail bomb statutes breach the Eighth Amendment by not requiring juries to consider mitigating evidence when deciding between life imprisonment and the death penalty. This argument is rejected based on Rule 402 of the Federal Rules of Evidence, which permits the admission of all relevant evidence, including mitigating evidence, as mandated by the Eighth Amendment. Key Supreme Court cases, such as McCleskey v. Kemp, McKoy v. North Carolina, and Lockett v. Ohio, affirm that any evidence with potential mitigating value must be presented to the jury. Cheely's assertion that the statutes are unconstitutional for lacking specified sentencing procedures is also dismissed, referencing the court's previous ruling in McKenzie v. Risley, which clarified that explicit statutory requirements for considering mitigating circumstances are not necessary. The trial court is directed to allow all mitigating evidence and instruct the jury in accordance with Supreme Court Eighth Amendment jurisprudence. The mail bomb statutes are deemed constitutional, as they narrowly define capital crimes and align with Supreme Court precedents aimed at preventing arbitrary imposition of the death penalty. The absence of specified statutory mitigating circumstances does not violate the Eighth Amendment, and any potential errors in excluding mitigating evidence can be appealed. Cheely has not successfully challenged the constitutionality of the mail bomb statutes, which are presumed constitutional under Congress. The district court's decision that these statutes violate the Eighth Amendment should be reversed. The majority's ruling to suppress evidence is correctly upheld, and the appeal might also be treated as a writ of mandamus. The text references a Supreme Court-approved jury instruction from 1948, allowing juries to return a qualified verdict that excludes capital punishment. Relevant case law, including Coker v. Georgia and Lowenfield v. Phelps, clarifies the conditions under which the death penalty can be applied. Specifically, 18 U.S.C. § 34 establishes that individuals convicted of certain crimes resulting in death may face the death penalty, without requiring a reckless state of mind from the defendant. Cheely does not argue that death is disproportionate for his alleged crime, but claims that the mail bomb statutes are flawed due to their broad application. However, established legal principles prevent challenges based on potential unconstitutional applications affecting others not involved in the case. The dissent incorrectly claims that Cheely lacks standing to include individuals convicted of less serious crimes in his Furman challenge. A Furman challenge addresses the capital sentencing system as a whole rather than its specific application to an individual. The Supreme Court has previously invalidated capital sentencing schemes based on challenges from defendants convicted of first-degree murder, affirming that even those convicted of severe offenses have the right to consistent and rational sentencing as outlined in Furman. The dissent erroneously argues that certain statutes only permit the death penalty for a specific type of "vicious killer" with "depraved intent." However, Section 844 merely requires knowledge or intent regarding the use of an explosive device to intimidate or cause damage, not necessarily resulting in harm. This broad application allows a wide class of death-eligible individuals, which aligns with concerns raised by dissenting Justices in Furman regarding the need for significant statutory changes to maintain capital punishment. Cheely's analogy suggests that merely subdividing homicide statutes would not suffice to save a capital sentencing scheme. For instance, if the mail bomb statutes specified that death sentences could only be imposed when serious bodily harm or death was intended, they would effectively narrow the class of death-eligible defendants. However, the statutes currently under review do not achieve such a refinement. The case of Tison established that the death penalty could be proportionate for reckless disregard for human life, but the current provisions permit capital punishment for a lesser mental state, such as intent to damage property. Section 794(a) establishes criminal penalties for communicating or transmitting national defense-related information to foreign entities with the intent to harm the United States or benefit a foreign nation, punishable by death or life imprisonment. The dissent argues that the current statute is more narrowly defined than the Espionage Act, mainly due to its requirement for a resulting death. It contends that the Espionage Act is unconstitutional for imposing the death penalty without a loss of life, potentially violating proportionality standards. However, the dissent suggests that significant harm to U.S. interests could justify the death penalty. The discussion also touches on Cheely's argument regarding the statutes preventing consideration of mitigating factors in sentencing, which has not been upheld by the courts since the Furman decision. The majority asserts that Cheely has standing to challenge the statutes based on fairness in sentencing, despite the lack of supporting cases for this approach. Notably, section 794(a) allows for the death penalty without requiring proof of injury or death resulting from espionage, and the text references previous Supreme Court rulings deeming certain death penalties disproportionate for specific crimes. The Supreme Court determined that the Eighth Amendment prohibits the death penalty for individuals who aid and abet a felony that results in murder but do not personally kill, attempt to kill, or intend for lethal force to occur. This ruling indicates that the death penalty cannot be applied unless a homicide is involved. In the case of Harper, the appellant was not charged with causing a death during the espionage crime, and Section 794(a) did not necessitate proof of a homicide for the death penalty to be applicable. The court's panel in Harper neglected to apply the precedents established in Coker and Enmund, which assert that the death penalty is excessive for those who have not committed homicide. The oversight may have stemmed from both parties' counsel focusing on the constitutionality of Section 794(a) based solely on its lack of statutory guidelines for jury discretion. Had the Harper panel referenced Coker and Enmund, it might not have needed to address the constitutionality of the statute regarding jury discretion limitations.