U.S. v. Seale

• Decision Date: 14 November 2008
• Docket Number: No. 07-60732.,07-60732.
• Citation: 550 F.3d 377
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Ford SEALE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

550 F.3d 377

UNITED STATES of America, Plaintiff-Appellee, v. James Ford SEALE, Defendant-Appellant.

No. 07-60732.

United States Court of Appeals, Fifth Circuit.

November 14, 2008.

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; Henry T. Wingate, Chief Judge.

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

(Opinion Sept. 9, 2008, 5 Cir., 2008, 542 F.3d 1033)

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

BY THE COURT:

A member of the Court in active service having requested a poll on the petition for rehearing en banc and a majority of the judges in active service having voted in favor of granting a rehearing en banc,

IT IS ORDERED that this cause shall be reheard by the court en banc with oral argument on a date hereafter to be fixed. The Clerk will specify a briefing schedule for the filing of supplemental briefs.

JERRY E. SMITH, Circuit Judge, dissenting:

I.

I respectfully dissent from the decision to rehear this case en banc and vacate the panel opinion. Judge DeMoss, writing for the unanimous panel, has crafted a careful and convincing opinion. In its petition for rehearing en banc, the government has not shown that the panel erred or that this case meets the high standards for en banc consideration.

The fault for this court's predicament lies squarely with the Department of Justice. Its delay of more than forty years in prosecuting defendant Seale for this despicable crime, of which he has finally been found guilty by a jury of his peers, is inexcusable. The government now asks this court to bail it out by declaring a result that cannot be reached except by a strained explication of the applicable statutes and caselaw.

The result of the government's inaction under myriad Attorneys General is, to say the least, unfortunate. Because, as the panel held, Seale's conviction is barred by the statute of limitations, Seale must be set free and cannot be successfully prosecuted for this unspeakable crime.

It is a necessary consequence of having a government of laws that wrongdoers at times must be released without further punishment.¹ The decision to rehear this matter en banc reflects a misunderstanding of the proper function of the en banc process; the panel opinion should have been permitted to stand.²

II.

The above-described error has now been unnecessarily and arbitrarily compounded: Oral argument has been delayed until late May 2009. I respectfully disagree with that decision as well.

The selection of a date for the oral submission of a case normally would not be the subject of public comment. This case is different, as I will explain.

For decades, this court has scheduled, in advance, three en banc sessions each year, evenly spaced on the twelve-month calendar in January, May, and September. In the event—and only in the event—that no cases have been voted for rehearing en banc, a particular en banc session will be canceled, because there are no cases to be heard. In accordance with this longstanding practice, the judges, their staffs, and other court personnel are notified well in advance of the dates that have been set aside for en banc arguments, and the remainder of the court calendar and court activities are set with the en banc sessions in mind. The point of all this is that the time is carefully blocked out for focus on the submission of en banc cases, which logically will be some of the more important cases the court will take up in a given year.

So it is that an en banc session was long ago scheduled for late January 2009. At the time the court's yearly schedule is set, there is no way to know which cases, or how many cases, will be reheard, so an en banc calendar, although designated for January, May, or September, is empty until a case or cases are voted en banc. Once a successful vote for en banc rehearing has been concluded, that case is immediately set for the next en banc session.³

That did not occur in this case, and it is the first time in my experience that this has been so. The attorneys were notified, by letter dated November 14, 2008, that the case will be argued in late May, not late January, 2009. Although a delay of four months in the submission of a case might not always be a matter of great moment, it is significant here.

As carefully explicated in the lengthy panel opinion, Seale is entitled to be released, for the reason that, as a matter of law, he cannot be prosecuted for this crime. The fact that this case has been selected for en banc rehearing means, naturally, that Seale's release will be delayed for many months even in the event that the en banc court reaches a result that agrees with the panel's. Given that fact, the case should have been scheduled for the next available regular en banc session, which is January. Instead, the January en banc calendar is empty and unused; no cases will be argued en banc at that time. The en banc session is available and blocked out for utilization but instead has been nullified by the decision to delay this case to May.⁴

The decision to leave the January en banc session empty—although made with the best of intentions and without malice toward Seale—is a plain and blatant violation of this court's well-settled and statutorily-required rules for expediting the submission and decision of criminal appeals. Those rules impose both specific and general requirements on not only the judges of this court but also on other actors in the federal appellate system, including government and private attorneys, public defenders, district courts, and judicial employees. The primary reason for those rules is to facilitate the final decisions in criminal cases. This is in recognition of the undeniable and unremarkable fact that some convictions will be reversed, or sentences reduced, so there is an obvious need, in the interest of justice, to shorten as much as possible the time a defendant may serve for a conviction or sentence that is flawed.

Important here are the stringent duties that the Fifth Circuit Plan for Expediting Criminal Appeals imposes on the judges of this court in fulfilling their responsibility to expedite criminal appeals:

Delays in deciding criminal cases are a matter of concern because by statute, criminal appeals must be expedited. . . . Fifth Circuit Judges are reminded of their obligations timely to screen and decide criminal appeals.

. . .

This court gives criminal appeals the highest priority in screening, calendaring and decision. Our circuit judges must meet expedited time lines for screening criminal cases, and the clerk's office must expedite calendaring of criminal appeals when oral argument is required. . . .

. . . By court policy, each judge must give direct criminal cases priority in the preparation and publication of opinions over all other cases except previously submitted direct criminal cases.

(Emphasis added.) These rules impose similar responsibilities on others, even under threat of sanctions.⁵ The decision to delay argument until May also violates Fifth Circuit Rule 47.7, which states that "appeals in criminal cases" enjoy the top "preference in processing and disposition."

Happily, the failure to abide by these requirements in the present case is an aberration. In fact, this court generally, and its dedicated judges in particular, take criminal-expediting seriously and do a commendable job of expediting the briefing, submission, and decision of criminal cases.

For example, the Clerk, on instruction from the court, sends each judge a weekly list of overdue criminal decisions. When the calendar is prepared for a given monthly session of panel arguments, absolute priority is given to criminal cases that are ready for submission.⁶ Moreover, in their work on criminal appeals, the judges of this court and their staffs, as well as our able corps of staff attorneys, are constantly aware of the need to rule as promptly as reasonably possible while still giving the criminal cases the careful attention they deserve.

The delay occasioned in this case is, as I have said, a regrettable lapse with which I respectfully disagree. One can only hope and trust that it will not happen again.

1. See, e.g., United States v. Cuellar, 478 F.3d 282, 295-96 (5th Cir.2007) (en banc) (Smith, J., dissenting), majority opinion rev'd, ___ U.S. ___, 128 S.Ct. 1994, 170 L.Ed.2d 942 (2008) (explaining that where a prosecution is mishandled, even bad people at times must be set free).

2. I am confident, however, that the en banc court will review this case with the utmost integrity, uninfected with an unwholesome desire to achieve a particular result irrespective of governing law.

3. This assumes that as of the completion of the en banc poll, there is sufficient time before the en...