U.S. v. Seale, 07-60732.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: DeMoss
• Citation: 542 F.3d 1033
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Ford SEALE, Defendant-Appellant.
• Docket Number: No. 07-60732.,07-60732.
• Decision Date: 09 September 2008

542 F.3d 1033 UNITED STATES of America, Plaintiff-Appellee,
v.
James Ford SEALE, Defendant-Appellant. No. 07-60732. United States Court of Appeals, Fifth Circuit. September 9, 2008.

[542 F.3d 1034]

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, Jackson, MS, for Seale.

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

Before DAVIS, SMITH and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

A federal jury found James Ford Seale guilty of two counts of kidnaping and one count of conspiracy to commit kidnaping, in violation of 18 U.S.C. § 1201(a) and (c). The kidnapings occurred in 1964, but the federal government did not indict Seale until 2007. Seale asserts several issues on appeal. In particular, citing the forty-three-year delay between commission of the alleged offense and indictment, Seale claims that his prosecution was barred by the applicable statute of limitations. See 18 U.S.C. § 3282 (establishing a five-year limitations period for "non-capital" crimes). For the reasons stated herein, we agree.

I.

On January 24, 2007, a federal grand jury in the Southern District of Mississippi returned a three-count indictment against Seale. The indictment alleged two counts of kidnaping in violation of 18 U.S.C. § 1201(a) and one count of conspiracy to commit kidnaping in violation of 18 U.S.C. § 1201(c). The charges stemmed from Seale's alleged involvement in the 1964 kidnapings of Henry Dee and Charles Moore. Prior to a jury trial, Seale filed a number of motions, including a motion to dismiss the case as time-barred by the statute of limitations. The district court denied Seale's motions and the case proceeded to trial. After the government presented its case, and again at the close of all the evidence, the court denied Seale's motions for judgment of acquittal. The jury ultimately convicted Seale on each count. On August 24, 2007, the court sentenced Seale to life in prison. Seale timely appealed his conviction.

II. A.

Seale raises seven issues on appeal, but this opinion only considers the argument that his prosecution was barred by the applicable statute of limitations. This issue presents a question of law that we review de novo. See United States v. Edelkind, 525 F.3d 388, 392 (5th Cir.2008), pet. for cert. filed (No. 08-5318) (U.S. July 14, 2008). Seale was convicted of violating two provisions of the federal kidnaping statute, 18 U.S.C. § 1201. The text of that statute has never included its own limitations

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period.¹ See, e.g., 18 U.S.C. § 1201 (West 2006); 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); Federal Kidnaping Act, Pub.L. No. 73-232, 48 Stat. 781 (1934). Rather, the applicable limitations period for kidnaping is determined by reference to the two default limitations periods in the criminal code. First, 18 U.S.C. § 3281 creates an unlimited period for indictment of capital offenses, which are defined as those punishable by death, and second, 18 U.S.C. § 3282 creates a five-year limitations period for all crimes that are not capital.²

While this scheme is easily applied in most instances, issues arise when both capital and non-capital versions of the federal kidnaping statute are potentially applicable. In 1964, the year Seale allegedly kidnaped Dee and Moore, the federal kidnaping statute authorized imposition of the death penalty when a defendant violated the provisions of the statute and the victim had "not been liberated unharmed." 18 U.S.C. § 1201 (1964).³ Because kidnaping was potentially "punishable by death" under this version of the statute, a prosecution could commence "at any time without limitation" under the default limitations statute, 18 U.S.C. § 3281, as long as the indictment alleged the death penalty eligible language. See Smith v. United States, 360 U.S. 1, 8, 79 S.Ct. 991, 3 L.Ed.2d 1041 (1959). Simply put, under the version of the federal kidnaping statute in effect in 1964, there was an "unlimited" statute of limitations.

However, Seale contends that two subsequent events made kidnaping a "non-capital" offense subject to the five-year limitations period. First, in United States v. Jackson, 390 U.S. 570, 581-82, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), the Supreme Court invalidated the death penalty provision in the federal kidnaping statute because it violated the Fifth and Sixth amendments to the United States Constitution. Second, the federal kidnaping statute was amended in 1972 to eliminate the death penalty as a punishment. See Pub.L. No. 92-539, 86 Stat. 1072.⁴ The

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district court below, in an oral ruling that focused almost entirely on the effect of Jackson, concluded that kidnaping remained a capital crime with no limitations period. The court made scant reference to the 1972 amendment, stating only that it "was not made retroactive." As discussed below, we conclude that the district court erred in finding that the 1972 amendment's effect on the statute of limitations was not retroactive.

B.

In 1972, Congress passed the Act for the Protection of Foreign Officials and Official Guests of the United States. See Pub.L. No. 92-539, 86 Stat. 1070-73. As relevant here, the Act amended the penalty provision of 18 U.S.C. § 1201, removing the death penalty as a potential punishment. Id.⁵ Under the 1972 version of § 1201, a defendant faced punishment "by imprisonment for any term of years or life." Id. This amendment plainly changes the punishment available, and by extension, the limitations period to be applied. See 18 U.S.C. §§ 3281, 3282. That is, under the 1972 version of § 1201, the death penalty was not an available punishment, and kidnaping was "not capital" for statute of limitations purposes, triggering application of the five-year limitations period. See id. § 3282. The parties agree with this characterization but dispute whether the five-year limitations period applies to an alleged violation of § 1201 that occurred in 1964, when prosecution did not commence until 2007. We conclude that the five-year limitations period applies.

To determine whether an amendment to a statute should be given retroactive effect, we first look to the intent of Congress. See Landgraf v. USI Film Prods., 511 U.S. 244, 280, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). Absent a clear statement from Congress that an amendment should apply retroactively, we presume that it applies only prospectively to future conduct, at least to the extent that it affects "substantive rights, liabilities, or duties." See id. at 278, 114 S.Ct. 1483; Greene v. United States, 376 U.S. 149, 160, 84 S.Ct. 615, 11 L.Ed.2d 576 (1964) ("[T]he first rule of [statutory] construction is that legislation must be considered as addressed to the future, not to the past." (quotation marks omitted)). Likewise, amendments that change the available punishment only apply prospectively. See 1 U.S.C. § 109 (the general saving clause); Warden, Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 661, 94 S.Ct. 2532, 41 L.Ed.2d 383 (1974).

However, that presumption is inapplicable where changes to a statute are merely procedural. Turner v. United States, 410 F.2d 837, 842 (5th Cir.1969). In other words, the presumption that statutory changes apply only prospectively "must yield to the rule ... that changes in statute law relating only to procedure or remedy are usually held immediately applicable"

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absent congressional intent to the contrary. Id.; see Landgraf, 511 U.S. at 275, 114 S.Ct. 1483; see also United States v. Vanella, 619 F.2d 384, 386 (5th Cir.1980) (recognizing that this rule is well-established); United States v. Blue Sea Line, 553 F.2d 445, 448 (5th Cir.1977) ("Although the distinction between procedure and substance tends to confuse more than clarify, courts have employed it to determine whether a given statutory change super[s]edes the prior law in cases arising from acts that occurred before the legislation's effective date. If a statutory change is primarily procedural, it will take precedence over prior law ...."). In applying this rule, panels of this Court have reasoned that procedural changes are given retroactive effect because they do not interfere with a party's substantive rights but relate "only to the procedural machinery provided to enforce such rights." Bowles v. Strickland, 151 F.2d 419, 420 (5th Cir.1945); see Turner, 410 F.2d at 842.

Further, in civil cases this Court has often held that statutes of limitation are procedural in nature and that changes to the applicable limitations period apply retroactively to pre-amendment conduct. F.D.I.C. v. Belli, 981 F.2d 838, 842 (5th Cir.1993); see United States v. Flores, 135 F.3d 1000, 1003 & n. 11 (5th Cir.1998) (habeas corpus appeal) (holding that in the wake of a statutory amendment, "we normally apply the statute of limitation that was in effect at the time of the filing of the suit"); St. Louis v. Texas Worker's Comp. Comm'n, 65 F.3d 43, 46 (5th Cir.1995) (applying the statute of limitations in effect at the time a case was filed); Resolution Trust Corp. v. Seale, 13 F.3d 850, 853 (5th Cir.1994) (holding that statutes of limitation "usually apply to pending cases and have retroactive effect"); Fust v. Arnar-Stone Labs., Inc., 736 F.2d 1098, 1100 (5th Cir.1984) (interpreting state law) ("Statutes of limitation, being procedural and remedial in nature, are generally accorded retroactive effect, unless they are unconstitutionally cast.").⁶ These cases recognize that statutes of limitation are procedural in nature because they do not disturb substantive rights. See, e.g., Flores, 135 F.3d at 1003 & n. 11.

This reasoning applies with equal or greater force to criminal limitations periods. Criminal statutes of limitation merely limit the time in...