              IN THE UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT



                             No. 92-7006



UNITED STATES OF AMERICA,
                                           Plaintiff-Appellant,

                               versus

JOHN FRED WOOLARD and
DEMPSEY A. BRUNER,
                                           Defendants-Appellees.




          Appeal from the United States District Court
            for the Southern District of Mississippi


                        ( January 11, 1993 )

Before WILLIAMS, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

     On October 9, 1991 Woolard and Bruner were indicted in the

Southern District of Mississippi for the murder of Robert L.

McGhee, an officer of the National Park Service "with malice

aforethought, premeditation," and during the commission of an

escape, contrary to 18 U.S.C. §§ 1111, 1114 and 2.         When the

prosecution gave required notice of intent to seek the death

penalty, defendants moved to strike the death penalty as a possible

sentence contending that the federal capital sentencing provision,

§ 1111, was unconstitutional.      The district court granted the

motion and the government has appealed, and alternatively, should

we find a lack of jurisdiction, petitioned for a writ of mandamus.
                                  I

     It is not certain that we have jurisdiction to review the

order striking death as a permissible punishment.   Defendants urge

that we do not.   They deny that the order is reviewable under 18

U.S.C. § 37311 or under the "collateral order" doctrine.   Cohen v.

Beneficial Industrial Loan Corp., 337 U.S. 541 (1949).

     In enacting § 3731 Congress "intended to remove all statutory

barriers to Government appeals and to allow appeals whenever the

Constitution would permit," United States v. Wilson, 420 U.S. 332,

337 (1975), and by its terms it is to be "liberally construed to

effectuate its purposes." 18 U.S.C. § 3731; see also United States

v. Aslam, 936 F.2d 751, 754 (2d Cir. 1991) (§ 3731 is illustrative

not exclusive); United States v. Edmonson, 792 F.2d 1492, 1496 (9th

Cir. 1986) (same).    Circuit courts have found jurisdiction to

review orders dismissing a count of an indictment and orders that

did not dismiss an entire count but altered it in a significant way

from the grand jury's charge.   For example, the Ninth Circuit found

jurisdiction to review an order striking forfeiture allegations

from a RICO indictment in United States v. Marubeni America Corp.,

611 F.2d 763, 764-765 (9th Cir. 1980), and the First Circuit


     1
      Section 3731 provides:

           In a criminal case an appeal by the United States shall
     lie to a court of appeals from a decision, judgment, or
     order of a district court dismissing an indictment or
     information or granting a new trial after verdict of
     judgment, as to any one or more counts, except that no
     appeal shall lie where the double jeopardy clause of the
     United States Constitution prohibits further prosecution.
     . . .

                                  2
reviewed a pretrial order striking a predicate act from a RICO

count.   United States v. Levasseur, 846 F.2d 786, 788 (1st Cir.),

cert. denied, 488 U.S. 894 (1988).   There is little question but

that the district court's ruling was in every practical way as much

of an alteration from the grand jury's charge as the striking of

predicate acts and forfeiture allegations.     The district court

effectively removed a discrete basis of criminal liability.    See

United States v. Tom, 787 F.2d 65 (2d Cir. 1986) (allowing the

government to appeal under § 3731 where the district court took

action having the practical effect of dismissal). We are persuaded

that we have jurisdiction under 18 U.S.C. § 3731, and we need not

consider the collateral order issues or mandamus.

                                II

     With a creative and bold new approach the government has

changed its own mind about the availability of the death penalty in

federal court without additional aid of Congress, see Memorandum

Opinion for the Associate Attorney General, 5 OP. O.L.C. 222

(1981), and confronts this court's ruling that 18 U.S.C. § 1111

could not support a death sentence under Furman v. Georgia, 408

U.S. 238 (1972).   See United States v. Kaiser, 545 F.2d 467 (5th

Cir. 1977).

     The government first attempts to bring its position within the

three distinct requirements of Furman.     See, e.g., Blystone v.

Pennsylvania, 494 U.S. 299, 308-09 (1990); McCleskey v. Kemp, 481

U.S. 279, 305-06 (1987).    First, the sanction of death must be

proportionate to the crime.    Second, the scheme must "genuinely


                                 3
narrow the class of persons eligible for the death penalty and must

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 (1983). Third, the sentencing judge or

jury must be allowed to consider all evidence that tends to

mitigate moral culpability and militate against a sentence of

death.   Penry v. Lynaugh, 492 U.S. 302 (1989).

     Death is a lawful punishment for intentional homicide.     See

Tison v. Arizona, 481 U.S. 137, 157-58 (1987).       Defendants are

charged with intentionally killing the park ranger. The second and

third requirements of Furman are more problematic.

     The government contends that §§ 1111 and 1114 in combination

narrow the class of defendants eligible for the death penalty as

required by Furman although both were enacted before Furman was

decided.2   Under § 1114, before a death sentence can be imposed the

     2
      Section 1114 provides:

          Whoever kills or attempts to kill . . . any officer or
     employee of the National Park Service . . . engaged in or on
     account of the performance of his official duties . . .
     shall be punished as provided for under sections 1111 and
     1112 of this title . . .

     Section 1111 provides:

          (a) Murder is the unlawful killing of a human being
     with malice aforethought. Every murder perpetrated by
     poison, lying in wait, or any other kind of willful,
     deliberate, malicious, and premeditated killing; or
     committed in the perpetration of . . . escape . . . is
     murder in the first degree.

          (b) Within the special maritime and territorial
     jurisdiction of the United States,

            Whoever is guilty of murder in the first degree, shall

                                  4
jury must find that defendants killed "an officer or employee of

the National Park Service . . . engaged in or on account of the

performance of his official duties."                  18 U.S.C. § 1114.            The

government urges that the jury's discretion is thus limited by

Congress and focused upon the circumstances of the crime itself.

Defendants reply that Congress's intent in passing § 1114 was only

to extend federal jurisdiction to murders of federal officers, and

even    if   narrowed,   the    statute      leaves    "a     host   of   difficult

substantive and procedural issues."            The district judge is left to

decide such issues as who has the burden of proof in the sentencing

phase, whether the jury should be instructed to weigh aggravating

evidence against mitigating evidence in order to arrive at a

sentence of life or death, whether jury findings of mitigation

preclude imposition of the death penalty, and other components of

a sentencing hearing.     These requisites of a sentencing hearing in

capital cases, defendants argue, cannot be supplied by judicial

fiat.

                                       III

       The Court in United States v. Feola, 420 U.S. 671, 679 (1975),

rejected     arguments   that    the   government       must     prove    that     the

defendant knew that his victim was a federal officer, concluding

that official status was not an element of the crime but was rather

the federal     jurisdictional     hook.       See     also    United     States    v.

Harrelson, 754 F.2d 1153, 1173 (5th Cir. 1985).                In short, there is


       suffer death unless the jury qualifies its verdity by adding
       thereto "without capital punishment," in which event he
       shall be sentenced to imprisonment for life . . .

                                        5
little question but that      Congress did not enact § 1114 to narrow

the range of crimes punishable by death or to segregate from other

crimes the murder of a federal officer as warranting the penalty of

death.     Congress simply wanted to make the murder of a federal

officer a federal crime.       The government's reply does not engage

here but rather contends that the motive or purpose of Congress

does not matter.

     The    question   is   whether   Congress    narrowed   the   range   of

offenses to the reach of Furman.          In other words, results matter

and not the reasons for the narrowing.           The role of motivation in

passing legislation has been long debated, including the disutility

of such a test for legitimacy.            It is a strange argument that

imposing the death penalty in this case would be unconstitutional,

but would pass muster if without changing the language or effect of

§ 1114 we found that Congress intended its effect in order to meet

the dictates of the Eighth Amendment, at least where here Congress

has not acted for any improper motive.           But, it is offered, it is

not enough that in the process of making a federal case of one

crime and not another the result is to narrow capital crimes to a

constitutionally permissible range.         It is not enough because the

Eighth Amendment and due process require that Congress select the

fit crimes; that Congress must do the weighing.                We are not

persuaded.

     We find no such insistence of congressional awareness in the

due process clause or the Eighth Amendment.           It is true that the

Eighth Amendment has been read as reflecting evolving standards of


                                      6
decency and the representative branch's judgment about the currency

of a standard is at least relevant.           Accepting all of this, it does

not argue for a unique defining role of Congress.                   In any event, we

have never recognized it.        More to the point, the suggestion begs

the question of whether Congress has not in fact narrowed.                       That

is, this     argument   is   simply    a     contention      for     inquiring     into

motivation, recast.

                                       IV

       This brings us to the question whether the trial judge can by

invention supply the required procedures at the sentencing hearing,

indeed supply a sentencing hearing.            The government contends that

the district court has inherent power to conduct those hearings

necessary to meet constitutional requirements such as evidentiary

hearings on the admissibility of evidence.                      We agree that a

district judge has inherent power essential to its task.                         There

are,     however,     many      different       ways      of        constructing     a

constitutionally adequate scheme.               The Supreme Court has left

states   free    to   proceed    in   ways    that     are     in    practice    quite

different.      There is simply not "any one right way . . . to set up

[a] capital sentencing scheme." Spaziano v. Florida, 468 U.S. 447,

464 (1984).

       The Federal Kidnapping Act was struck down because it made

kidnapping punishable by death only on a plea of not guilty and

hence penalized a defendant's right to put the government to its

proof.    United States v. Jackson, 390 U.S. 570 (1968).                  The Court

in Jackson rejected the effort to save the statute with the


                                        7
argument that a district judge could conduct a sentencing hearing

on a plea of guilty by exercise of its inherent power.   It pointed

out that there are a number of policy decisions not addressed by

Congress that would need be made, asking:

     If a special jury were convened to recommend a sentence, how
     would the penalty hearing proceed? What would each side be
     required to show? What standard of proof would govern? To
     what extent would conventional rules of evidence be abrogated?
     What privileges would the accused enjoy? Congress . . . has
     addressed itself to none of these questions . . .

Id. at 579.   The Court then explained that these choices were for

Congress not federal judges acting ad hoc across the country.   Id.

at 580-81.

          It is one thing to fill a minor gap in a statute . . .
     It is quite another thing to create from whole cloth a complex
     and completely novel procedure and to thrust it upon unwilling
     defendants for the sole purpose of rescuing a statute from a
     charge of unconstitutionality.

Id. at 580.   The choices are for the Congress and it has not acted.

We agree with the district court on this point and affirm.

     AFFIRMED.




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