Monday, June 08, 2009

En Banc Court Splits Evenly in Seale, Thereby Affirming District Court's Rejection of SOL Challenge

This past Friday, the Fifth Circuit issued the following two-sentence order in United States v. Seale:
By reason of an equally divided en banc court, the decision of the district court on the sole issue of its denying dismissal of 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.
Judge DeMoss, the author of the panel decision, dissented. He also said that the order's "use of the term 'affirmed' is somewhat misleading." While the effect of an equally divided vote is to let the decision of the court below stand, "the use of the term 'affirmed' should not be construed to mean that the en banc court approves of the reasoning of the district court." Sort of like a cert denial, in other words.

(Link to the order courtesy of the Jackson (Miss.) Clarion-Ledger, by way of How Appealing.)



Blogger Texas Lawyer said...

Does that mean the defendant picked up a vote? Or was there a change in composition of the court?

6/09/2009 12:32:00 PM  
Blogger Brad Bogan said...

Texas Lawyer,

The only change in the composition was that Judge DeMoss was in on the en banc consideration, but not on the vote to grant.

It's interesting that no one joined his dissent.

6/09/2009 02:24:00 PM  

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