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

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtPer Curiam
Citation570 F.3d 650
PartiesUNITED STATES of America, Plaintiff-Appellee, v. James Ford SEALE, Defendant-Appellant.
Docket NumberNo. 07-60732.,07-60732.
Decision Date05 June 2009
570 F.3d 650
UNITED STATES of America, Plaintiff-Appellee,
v.
James Ford SEALE, Defendant-Appellant.
No. 07-60732.
United States Court of Appeals, Fifth Circuit.
June 5, 2009.

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

Kathryn Neal Nester (argued) and George Lowrey Lucas, Jackson, MS, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Mississippi; Henry T. Wingate, Chief Judge.

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:


By reason of an equally divided en banc court, the decision of the district court on the sole issue of its denying dismissal of

570 F.3d 651

the indictment because of the running of the statute of limitations is AFFIRMED.

The appeal is RETURNED to the panel for decision of the other issues raised on appeal.

DeMOSS, Circuit Judge, dissenting:

For the reasons stated in the unanimous panel opinion previously filed in this appeal, see United States v. Seale, 542 F.3d 1033 (5th Cir.2008), I disagree with those members of the en banc court who voted to affirm the district court's denial of Seale's motion to dismiss the indictment on limitations grounds.

Both the Supreme Court and this circuit have held that when the appellate court is evenly divided on an issue, the judgment of the lower court is "affirmed." See Sch. Bd. of Richmond, Va. v. State Bd. of Educ. of Va., 412 U.S. 92, 93, 93 S.Ct. 1952, 36 L.Ed.2d 771 (1973) (per curiam); United States v. Kirk, 105 F.3d 997, 998 (5th Cir.1997) (en banc); United States v. Ibarra, 965 F.2d 1354, 1357 (5th Cir.1992) (en banc). The use of the term "affirmed" is somewhat misleading. The Supreme Court has described this nominal affirmance as follows:

In cases of appeal or writ of error in this court, the appellant or plaintiff in error is always the moving party. It is affirmative action which he asks. The question presented is, shall the judgment, or decree, be reversed? If the judges are divided, the reversal cannot be had, for no order can be made. The judgment of the court below, therefore, stands in full force. It is, indeed, the settled practice in such case to enter a judgment of affirmance; but this is only the most convenient mode of expressing the fact that the...

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17 cases
  • US v. Seale, 07-60732.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 17, 2010
    ...court was equally divided and the court nominally affirmed the district court's denial of the motion to dismiss. United States v. Seale, 570 F.3d 650 (5th Cir.2009). The appeal was returned to the original panel for consideration of the remaining issues raised by Following the en banc court......
  • United States v. Lewis, Criminal No. 3:12-CR-159-D(01)
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
    • December 9, 2013
    ...19. The Fifth Circuit addressed the question in a criminal case in United States v. Seale, 542 F.3d 1033 (5th Cir. 2008), reh'g en banc, 570 F.3d 650 (5th Cir. 2009) (vacating panel opinion by evenly-divided court), which involved amendments to the federal kidnaping statute. But the panel o......
  • U.S. v. Seale, No. 07-60732 (5th. Cir. 3/12/2010), 07-60732.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 12, 2010
    ...court was equally divided and the court nominally affirmed the district court's denial of the motion to dismiss. United States v. Seale, 570 F.3d 650 (5th Cir. 2009). The appeal was returned to the original panel for consideration of the remaining issues raised by Following the en banc cour......
  • United States v. Jones, CRIMINAL ACTION NO. 19-72-JWD-EWD
    • United States
    • United States District Courts. 5th Circuit. Middle District of Louisiana
    • April 8, 2021
    ...is not a case in which, for example, Herrod had "communicated doubts regarding the guilty plea" soon after he pleaded guilty. McKnight, 570 F.3d at 650. . . . Even if we were to consider only the delay between the filing of the PSR and the filing of the motion to withdraw, that period—more ......
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