the elimination of the death penalty eliminates Dufur’s right under 18 U.S.C. § 3005 to a second court-appointed attorney.” Id.; see also United States v. Steel, 759 F.2d 706, 710 (9th Cir.1985) (reaffirming Dufur’s conclusion that the right to second counsel is “eliminated along with the elimination of the death penalty”). Our reasoning and statutory construction in Dufur logically dictate the conclusion that the government’s irrevocable decision not to pursue the death penalty eliminated Waggoner’s right under § 3005 to a second court-appointed counsel. As the Third Circuit recently observed, “after the government declared that it would no longer seek the death penalty, the appellants were no longer capital defendants.” United States v. Casseus, 282 F.3d 253, 256 (3d Cir.2002) (<HOLDING>). Dufur’s construction is also consistent with
holding that leaning towards the death penalty is not the same as an automatic vote for the death penalty holding any error in refusing to appoint an additional counsel under  3005 is harmless when the government declines to seek the death penalty holding that any error was harmless and thus not plain error holding that burden is on government to show that error in failure to provide notice is harmless holding that the decision to seek the death penalty is made by a separate branch of the government and is therefore not a cognizable federal issue