Opinion by Judge FLETCHER; Concurrence and Dissent by Judge ALARCON.
ORDER
Although no petition for rehearing was filed, and no request for en banc rehearing was made by the parties, a member of the court requested en banc rehearing of this appeal. The request was put to a vote of all active non-reeused judges. The request did not secure the required majority vote of the active non-recused members of the court.
The panel, of its own motion, called for supplemental briefs on the possible effect of the Supreme Court’s decision in Davis v. United States, — U.S. -, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) on its affirmance of the district court order to suppress 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): [Editor’s Note: Amendment incorporated for purposes of publication].
No petition for rehearing will be entertained. The mandate shall issue forthwith.
[1441]*1441OPINION
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. § 8005 (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 ease. 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. § 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. § 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 § 3731 to review district court’s order striking death as a permissible punishment for violation of 18 U.S.C. §§ 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
1. Challenge to the Death Penalty
A. Factual Background
In 1991, Cheely and Gustafson2 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. §§ 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. Risky, 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).
[1442]*14421. 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) (“[Wjhere 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 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, 108 L.Ed.2d 255 (1990) (quoting McCleskey v. Kemp, 481 U.S. 279, 305-06, 107 S.Ct. 1756, 1774, 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
[1443]*14432. Constitutionality of §§ 844(d) and 1716(a)
The statutory provisions under which the government seeks the death penalty for Cheely are as follows:
§ 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. § 844(d) (1988).
§ 1716. Injurious articles as nonmaila-ble
(a) [A]ll explosives, inflammable materials, infernal machines, and mechanical, chemical, or other devices or compositions which may ignite or explode, ... are non-mailable 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 non-mailable by this section, whether or not transmitted in accordance with the rules ... with intent to kill or injure another, or 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. § 1716(a), undesignated paragraphs following (i) (1988).
These provisions authorize the death penalty not only for persons whq 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 inflammable material through the mail, and a resulting death, they are broad enough to authorize death for persons guilty of no more than involuntary manslaughter. Suppose, for instance, one person mails another an explosive or inflammable substance in furtherance of a joint plan to blow a crater in the local college’s football field, to protest the ascendancy of athletics over academics. If for any reason the substance accidentally explodes while en route,8 and a person dies as a result, both conspirators could be sentenced to death.
This scenario raises at least two constitutional problems. First, in such circumstances the death penalty would be disproportionately severe.9 Cheely is not in a position to advance this argument, however, as he is charged with the intentional murder of David Kerr.10
[1444]*1444Second, under the statute one jury could sentence the football field bombers to death, while another could reject the death penalty in a case where a paid assassin successfully used a mail bomb to murder an NAACP leader. The prospect of such “wanton” and “freakish” death sentencing is intolerable under Furman and the cases following it. The constitutional defect in sections 844(d) and 1716(a) is that they create the potential for impermissibly disparate and irrational sentencing because they encompass a broad class of death-eligible defendants without providing guidance to the sentencing jury as to how to distinguish among them.11
The gravamen of the government’s argument, and that of the dissent, is that in defining the death-eligible conduct these sections sufficiently narrow the class of death-eligible persons, and thus that no further guidance to the jury is required. Given the potential for such extreme disparities as those between the football field bombers and the NAACP assassin, we cannot agree.12 In evaluating sections 844(d) and 1716(a), we do not find the requisite statutory narrowing that the Court found adequate in Lowenfield and Jurek.
In Lowenfield and Jurek, the Supreme Court upheld the capital sentencing schemes of Louisiana and Texas. These schemes authorized the death penalty if the jury found the defendant guilty of murder under partie-ularly aggravated circumstances. Specifically, death was authorized where the defendant murdered certain types of persons (e.g., children, police officers, prison guards), where the murder was committed with a particularly heinous state of mind (e.g., with intent to kill more than one person, as a paid assassin, or in the course of torture), or where the murder was committed in the course of an aggravated felony. See Lowenfield, 484 U.S. at 242-43, 108 S.Ct. at 553-54; Jurek, 428 U.S. at 265-66, 96 S.Ct. at 2953-54; see also Gregg, 428 U.S. at 165-66, 96 S.Ct. at 2921-22 (aggravating circumstances in Georgia’s capital sentencing scheme); McKenzie, 842 F.2d at 1538 n. 26 (aggravating circumstances in Montana’s capital sentencing scheme).
The statutory scheme approved in Gregg was different from those in Jurek and Low-enfield but it achieved the same result: by first marking out a broad category of murderers, and then authorizing the jury to impose death only upon certain, well-defined subclasses involving highly aggravating factors, the scheme avoided the possibility of arbitrary sentencing abhorred in Furman. In contrast, sections 844(d) and 1716(a) neither require the jury to find any of the aggravating factors present in Gregg, nor account for these factors directly in their definitions of death-eligible conduct, as did the statutes in Jurek and Lowenfield. In[1445]*1445deed, these sections do not even restrict their focus to murderers, but rather sweep within their coverage those guilty of no more than involuntary manslaughter.13
The government argues that these sections genuinely narrow the class of death-eligible persons because they authorize the death penalty only for those relatively few persons who use mail bombs.14 This argument reveals a fundamental misunderstanding of the easelaw. Narrowing is not an end in itself, and not just any narrowing will suffice. The narrowing must be such that it forecloses the prospect of the cruel and unusual punishment from “wanton or freakish” imposition of the death penalty. When juries are presented with a broad class, composed of persons of many different levels of culpability, and are allowed to decide who among them deserves death, the possibility of aberrational decisions as to life or death is too great. The statute before us is unconstitutional because it utterly fails to foreclose this prospect.
The dissent argues at some length that because Congress can legislate only in respect to federal crimes, and must therefore focus on murder by mail bomb rather than murder generally, the requisite narrowing has been accomplished by virtue of the statute’s limited jurisdiction. Dissent at 1455-57. We disagree. Surely, the death penalty cannot be imposed for any and every intentional act which is susceptible to federal legislative jurisdiction and which results in a death. "Whether statutes are state or federal, in narrowing the class of death-eligible defendants, they must focus on the type of aggravating factors described in Lowenfield, Jurek, and Gregg, not on mere jurisdictional prerequisites.15
The government also argues that sections 844(d) and 1716(a) are like the capital sentencing provisions in Jurek and Lowenfield in that they narrow the class of death-eligible persons to those who cause “a risk of death or great bodily harm to more than one person,” and to those who kill a public official. Appellant’s Opening Brief at 25. However, these factors have been held to adequately “narrow[ ] the class of death-eligible murderers,” not a broader class of those who may be guilty of murder or involuntary manslaughter. Lowenfield, 484 U.S. at 246, 108 S.Ct. at 555 (emphasis added). Moreover, sections 844(d) and 1716(a) do not in fact require a finding of risk to more than one person, reckless disregard for human life,16 or the death of a public official. Again, these sections are nothing like the capital sentencing provisions upheld in Jurek and Lowenfield.
Finally, we also agree with Cheely’s contention that United States v. Harper, 729 F.2d 1216 (9th Cir.1984), cuts against the government’s claim that sections 844(d) and 1716(a) are sufficiently narrow because they limit their focus to homicides that result from the mailing of prohibited materials. In Harper, we held unconstitutional the capital sentencing provision of the Espionage Act, 18 U.S.C. § 794(a) (1982).17 Cheely persuasive[1446]*1446ly contends that “[i]f the provision of potential capital consequences ... in the Espionage Act is unconstitutional, as the Harper court held ... then, a fortiori” — because “[i]t is difficult to conceive of an offense category more narrow than espionage” — the death penalty provisions of §§ 844(d) and 1716(a) must also be unconstitutional. Appellee’s Brief at 32.18
We affirm the district court’s determination that the death penalty provisions in 18 U.S.C. §§ 844(d) and 1716(a) are unconstitutional because they do not “genuinely narrow the class of persons eligible for the death penalty,” Zant, 462 U.S. at 877, 103 S.Ct. at 2742, and because they set the stage for capital punishment which may be “wantonly and ... freakishly imposed.” Furman, 408 U.S. at 310, 92 S.Ct. at 2763 (Stewart, J., Concurring).19
II. Motion to Suppress Evidence
A. Factual Background
On September 20, 1991, three days after the mail bomb explosion, postal inspectors Glenn Porter and David Hertle visited Cheely at the Cook Inlet Pretrial Facility in Anchorage, where Cheely is serving a sixty-year sentence in the state prison system for the murder of Jeffrey Cain.
Porter and Hertle were among the postal inspectors detailed to execute a warrant to search Cheely’s person, his property, and his cell for evidence pertaining to the Kerr bombing,20 and to interview him regarding the incident. After conducting the search, Porter and Hertle advised Cheely that they wanted to talk to him. Cheely responded that he had been expecting them. The inspectors next advised Cheely of his rights, utilizing a “Form 1067” with a “warning” section identical in all material respects to the “advice of rights” form approved in United States v. Fouche, 833 F.2d 1284, 1286 n. 2 (9th Cir.1987) (‘Fouche II"), cert. denied, 486 U.S. 1017, 108 S.Ct. 1766, 100 L.Ed.2d 218 (1988).
Cheely acknowledged that he understood his rights and signed on a line directly beneath the warning section. Form 1067 also includes a “waiver” section, which reads: “I am willing to discuss subjects presented and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me.” Cheely declined to sign the waiver.
[1447]*1447The two inspectors’ versions of what transpired next are consistent.
Porter:
Q [by the prosecutor] Did [Cheely] say anything with regard to declining to sign the waiver portion of the form?
A He did tell us that he—his attorney had advised him not to talk to us.
Q What did you say, if anything, at that point?
A We asked him, with that being the case, did he want to talk to us about the—about the case, and he told us that he appreciated us coming down to talk to him. He also told us that he had tried to talk to the Anchorage Police Department when this thing went down back in October of ’90.
Hertle:
Q [by the prosecutor] What about the waiver portion of [Form 1067], on the bottom. Just tell us what happened with regard to that.
A [Cheely] told me that he didn’t think he need—he told me that he didn’t think he wanted to sign that.
Q Well, did you read it to him?
A I read him the waiver, yes.
Q And then what happened after you read it to him? Did you ask him anything?
A Well, he told me that he didn’t think his attorney would want him talking to us, and I said to him, With that in mind, would you still want to talk with us?’
Q What did he say?
A He said he sure—he said he appreciated the postal inspectors coming to visit with him, and then he started to tell us, back in October of 1990, that he’d wanted to talk to Anchorage .Police Department regarding the homicide case at that time, and they refused to talk to him.
During the initial stages of the interview, Inspector Porter took notes. Porter testified that, when Cheely realized notes were being taken, “once again he said that his attorney had advised him not to talk to us, ... and he was concerned about my taking notes.” Her-tle, in his testimony, does not mention the second reference by Cheely to his attorney’s advice, recalling merely that Cheely told them that “[h]e would be comfortable to continue the conversation as long as we were not taking notes of that conversation.” Porter stopped taking notes at that point. The “conversation,” during which Cheely asked the inspectors several questions, lasted approximately two hours. The government acknowledges that although Cheely did not confess, he made several incriminating statements.
B. Analysis
The essential facts underlying the district court’s decision to suppress Cheely’s September 20, 1991 statements are not in dispute. We review the district court’s legal conclusion that there was no waiver and that Cheely’s Miranda rights were violated de novo. See United States v. Homick, 964 F.2d 899, 903 (9th Cir.1992).
As an initial matter, it is clear that the inspectors’ “conversation” with Cheely was a custodial interrogation. In Cervantes v. Walker, 589 F.2d 424 (9th Cir.1978), this court characterized Mathis v. United States, 391 U.S. 1, 4-5, 88 S.Ct. 1503, 1505, 20 L.Ed.2d 381 (1968), as deciding that Miranda warnings were required where a prisoner was questioned “by a government agent, not himself a member of the prison staff, on a matter not under investigation within the prison itself” because that questioning “constituted an additional imposition on his limited freedom of movement.” Cervantes, 589 F.2d at 428. Here, Cheely was interrogated and searched by postal inspectors executing a warrant and investigating a mail bomb murder that occurred outside the prison walls. He was taken from his cell at the Cook Inlet facility to a locked rqom, where he was strip searched and then questioned for two hours. This is, without a doubt, custodial interrogation.
Of course, Cheely does not necessarily invoke his rights simply by saying the magic word “attorney”; that word “has no talismanic qualities,” and “[a] defendant does not invoke his right to counsel any time the [1448]*1448word falls from Ms lips.” United States v. Jardina, 747 F.2d 945, 949 (5th Cir.1984), cert. denied, 470 U.S. 1058, 105 S.Ct. 1773, 84 L.Ed.2d 833 (1985). Similarly, an express written or oral waiver of the right to counsel “is not inevitably either necessary or sufficient to establish waiver.” North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286 (1979).
In combination, however, Cheely’s written acknowledgment that he understood his rights, his refusal to sign the waiver portion of Form 1067, and his explanation of that refusal—my attorney does not want me to talk to you—amount to an invocation of his rights under Edwards v. Arizona. “[H]aving expressed his desire to deal with the [postal inspectors] only through counsel, [Cheely] is not subject to further interrogation by the authorities until counsel has been made available to him...” Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981). Cheely’s continued response to questions from Porter and Hertle after invoking his right to counsel does not constitute waiver of the right. See Smith v. Endell, 860 F.2d 1528, 1529 (9th Cir.1988) (citing Edwards), cert. denied, 498 U.S. 981, 111 S.Ct. 510, 112 L.Ed.2d 522 (1990).
Subsequent to the filing of the opinion in this appeal, the Supreme Court decided Davis v. United States, — U.S. -, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). We called for supplemental briefing from the parties as to the effect Davis might have on our conclusion that Cheely had unequivocally invoked Ms right to counsel and that the inspector’s inquiry as to whether Cheely wanted to talk, despite his attorney’s advice, was improper once Cheely invoked Ms right to counsel. We now reaffirm the district court’s grant of Cheely’s motion to suppress. The factual differences between the two cases are striking. Davis waived his right to counsel both orally and in writing. Cheely declined to waive his right to counsel either orally or in writing. Davis was interrogated for half an hour before he said, “Maybe I should talk to a lawyer.” Asked if he were making a comment or asking for a lawyer, he responded, “No, I am not asMng for a lawyer” followed by, “No, I don’t want a lawyer.”
In contrast to Cheely who unequivocally refused to waive his right to counsel, Davis uneqmvocally waived his right and then, after a period of questioMng, eqmvoeated as to whether he should ask for counsel and said he was not asking for counsel. The Davis court saw “no reason to disturb [the lower court’s] conclusion” that “petitioner’s remark to the NIS agents [ ] was not a request for counsel.”
Id. at-, 114 S.Ct. at 2357. We see no reason here to disturb the district court’s conclusion that Cheely had invoked his right to counsel.
Frnally, 18 U.S.C. § 3501 (1988), wMch provides that a confession or “any self-incriminating statement” shall be admissible at trial if “voluntarily given,” id. at § 3501(a), (e), does not, as the government argues, trump Edwards. Cheely’s statements were “unconstitutionally elicited after he had invoked his right[ ] to counsel ..., [and] it is [thus] irrelevant that [Cheely’s] subsequent [incriminating statements] w[ere] voluntary.” See Desire v. Attorney General, 969 F.2d 802, 805 (9th Cir.1992).
CONCLUSION
The district court correctly determined that the death penalty provisions of 18 U.S.C. §§ 844(d) and 1716(a) are unconstitutional. It also correctly granted Cheely’s motion to suppress.
AFFIRMED.