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Below is a case reviewed for The Daily Commentary on June 15, 2009.
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United States v. Seale No. 07-60732

http://www.ca5.uscourts.gov/opinions/pub/07/07-60732-CR0.wpd.pdf
Original Panel Opinion - September 9, 2008

http://www.ca5.uscourts.gov/opinions/pub/07/07-60732.wpd.pdf
Grant of En Banc Rehearing - November 14, 2008

http://www.ca5.uscourts.gov/opinions/pub/07/07-60732-CV1.wpd.pdf
En Banc Opinion - June 5, 2009

Before JONES, Chief Judge, KING, JOLLY, DAVIS, SMITH, WIENER, BARKSDALE, GARZA, DeMOSS, BENAVIDES, STEWART, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, and HAYNES, Circuit Judges. (PER CURIAM).

AFFIRMED and RETURNED. (June 5, 2009).

A federal jury found James Ford Seale guilty of two counts of kidnapping and one count of conspiracy to commit kidnapping, in violation of 18 U.S.C. § 1201(a)(c). The kidnappings occurred in 1964, but the federal government did not indict Seale until 2007. Seale presented several arguments on appeal, including the argument that, given the forty-three year delay between commission of the alleged offense and indictment, his prosecution was barred by 28 U.S.C. § 3282, establishing a five-year limitations period for non-capital crimes.

In an opinion dated September 9, 2008, the original three Judge panel of the Fifth Circuit agreed and vacated Seale’s conviction. The Court pointed out that the text of the kidnapping statute does not contain its own limitations period. The default provisions in the criminal code provide an unlimited period for indictment of capital offenses, which are defined as those punishable by death, and a five year limitations period for all crimes that are not capital. Under the version of the kidnapping statute in effect in 1964, kidnapping was potentially punishable by death, so that prosecution could commence at any time. However, in 1972 the statute was amended to eliminate the death penalty as a punishment. The Court found that the District Court had erred in finding that the 1972 amendment’s effect on the statute of limitations was not retroactive. The Court concluded that changes to criminal statutes of limitation presumptively apply retroactively to pre-amendment offenses, absent Ex Post Facto concerns not present in the instant case.

En banc rehearing was granted, however Judge SMITH dissented, concluding that the unanimous panel’s opinion, written by Judge DeMOSS, was “careful and convincing,” and should have been permitted to stand. Judge SMITH was opposed to the decision to rehear the matter En Banc, and claimed that the grant of rehearing En Banc reflected a misunderstanding of the proper function of the En Banc process. Despite his disagreement with the decision to grant rehearing En Banc, he expressed his confidence that an En Banc Fifth Circuit would review the case with integrity, “uninfected with an unwholesome desire to achieve a particular result irrespective of governing law.”

The matter was reheard and an equally divided En Banc Court affirmed the District Court on the sole issue of the denial of dismissal of the indictment based on the running of the statute of limitations. This time Judge DeMOSS dissented, declaring that for reasons stated in the unanimous panel opinion he disagreed with the En Banc Court’s decision to affirm the District Court’s denial of the motion to dismiss the indictment on limitations grounds. Judge DeMOSS’s dissent emphasized that the affirmance resulted from the Court’s even division on the issue and should not be construed to mean that the En Banc Court approved the reasoning of the District Court.

On Appeal from the United States District Court for the Southern District of Mississippi, Jackson Division (Henry T. Wingate)
Attorney for Appellant - Kathryn Neal Nester, Jackson, MS
Attorney for Appellee - Torvah R. Calderon, Washington, DC
USDC No. 3:07-CR-9-1.