577 F.3d 566 (5th Cir. 2009), 07-60732, United States v. Seale

Docket Nº:07-60732.
Citation:577 F.3d 566
Opinion Judge:PER CURIAM:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. James Ford SEALE, Defendant-Appellant.
Attorney:Tovah R. Calderon (argued), Jessica Dunsay Silver, U.S. Dept. of Justice, Civ. Rights Div.-App. Section, Washington, DC, for U.S. Kathryn Neal Nester (argued), George Lowrey Lucas, Fed. Pub. Defenders, Jackson, MS, for Seale.
Judge Panel:Before JONES, Chief Judge, and KING, JOLLY, DAVIS, SMITH, WIENER, BARKSDALE, GARZA, DeMOSS, BENAVIDES, STEWART, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK and HAYNES, Circuit Judges. JONES, Chief Judge, together with KING, WIENER, CLEMENT and OWEN, Circuit Judges, dissenting: CARL E. STEWART,...
Case Date:July 30, 2009
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 566

577 F.3d 566 (5th Cir. 2009)

UNITED STATES of America, Plaintiff-Appellee,

v.

James Ford SEALE, Defendant-Appellant.

No. 07-60732.

United States Court of Appeals, Fifth Circuit.

July 30, 2009

Page 567

Tovah R. Calderon (argued), Jessica Dunsay Silver, U.S. Dept. of Justice, Civ. Rights Div.-App. Section, Washington, DC, for U.S.

Kathryn Neal Nester (argued), George Lowrey Lucas, Fed. Pub. Defenders, Jackson, MS, for Seale.

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

CERTIFICATE OF QUESTION TO THE SUPREME COURT OF THE UNITED STATES

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

PER CURIAM:

Pursuant to 28 U.S.C. § 1254(2) and Supreme Court Rule 19, a majority of the members of the en banc court have voted to certify the following question of law to the Supreme Court: What statute of limitations applies to a prosecution under 18 U.S.C. § 1201 for a kidnaping offense that occurred in 1964 but was not indicted until 2007?

The Supreme Court has jurisdiction to review cases " [b]y certification at any time by a court of appeals of any question of law in any civil or criminal case as to which instructions are desired, and upon such

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certification the Supreme Court may give binding instructions or require the entire record to be sent up for decision of the entire matter in controversy." 28 U.S.C. § 1254(2). Supreme Court Rule 19 explains that " [a] United States court of appeals may certify to [the Supreme] Court a question or proposition of law on which it seeks instruction for the proper decision of a case. The certificate shall contain a statement of the nature of the case and the facts on which the question or proposition of law arises. Only questions or propositions of law may be certified, and they shall be stated separately and with precision." The Supreme Court has cautioned against a question of " objectionable generality" and prefers " a definite and clean-cut question of law." See United States v. Mayer, 235 U.S. 55, 66, 35 S.Ct. 16, 59 L.Ed. 129 (1914). In keeping with this instruction, we will now provide the relevant facts and frame the dispositive legal question.

I.

A federal jury in the Southern District of Mississippi found James Ford Seale guilty of two counts of kidnaping under 18 U.S.C. § 1201(a) and one count of conspiracy to commit kidnaping under 18 U.S.C. § 1201(c). The district court sentenced him to life imprisonment. The kidnapings occurred in 1964, but the government did not indict Seale until 2007.

Unlike some federal crimes, § 1201 does not include its own limitations period. The residual limitations periods of the criminal code, sections 3281 and 3282, apply to those federal crimes that do not contain their own limitations periods. Section 3281 states that " [a]n indictment for any offense punishable by death may be found at any time without limitation." In contrast, § 3282 states that " no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found ... within five years next after such offense shall have been committed." Before the case proceeded to trial, Seale filed a motion to dismiss the indictment, alleging that his prosecution was barred by the five-year statute of limitations applicable to non-capital crimes. See 18 U.S.C. § 3282. After conducting a hearing, the district court orally denied Seale's motion to dismiss the indictment based upon a finding that the prosecution was governed by the unlimited statute of limitations applicable to capital crimes. See 18 U.S.C. § 3281.

In 1964, kidnaping was punishable by death, so the capital limitations period applied. However, in 1968, the Supreme Court held that the death penalty clause of § 1201 was unconstitutional and severable from the remainder of the statute. See United States v. Jackson, 390 U.S. 570, 581-82, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968). In 1972, the Supreme Court decided Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), which cast serious doubt on whether existing state and federal death penalty regimes were constitutional under the Eighth Amendment. On the recommendation of the Department of Justice, Congress repealed the death penalty clause of § 1201 in order to avoid " facial invalidity" in the wake of Jackson and Furman. See Act for the Protection of Foreign Officials and Official Guests of the United States, Pub.L. No. 92-539, § 201, 86 Stat. 1070-73 (1972) (hereinafter referred to as the " 1972 Act" or the " 1972 amendments" ); 118 Cong. Rec. 27116 (1972) (statement of Rep. Poff). Until Congress reinstated the death penalty for kidnaping in 1994, § 1201 carried a five-year statute of limitations.1 See 18 U.S.C. § 3282. Before the

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district court, Seale argued that either Jackson or the 1972 amendments, standing alone, had the effect of changing the limitations period applicable to his prosecution from unlimited to five years.

The district court held that Jackson standing alone did not change the limitations period applicable to...

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