Thursday, July 30, 2009

Fives Certify Question to SCOTUS in Seale; Ask What SOL Applies to Kidnapping Committed in 1967 But Not Indicted Until 2007

You all remember Seale, right? Seale was indicted and convicted in 2007 for kidnapping and conspiracy to commit kidnapping, arising from his alleged involvement in the kidnapping and murder of two black men in 1964. A Fifth Circuit panel reversed Seale's convictions, holding that the prosecution was time-barred because a 1972 amendment to the kidnapping statute retroactively reduced the statute of limitations from life to five years. On rehearing en banc, an equally divided court reversed the panel decision, thus affirming the district court's rejection of Seale's limitations defense.

In a highly unusual move, the en banc court today certified the following question to the Supreme Court, at Seale's urging: "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?"

"What's certification," you ask? It's an obscure provision found in 28 U.S.C. § 1254(2), which provides,
By 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 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.
As you might imagine, the Supreme Court rarely accepts certified questions. But the Fifth Circuit concluded that this case fits the bill. Why?
This is an issue of first impression and national importance. The nominal affirmance of Seale’s life sentence by an equally divided en banc court is the type of rare instance where certification is appropriate. See Durrant v. Essex Co., 74 U.S. (7 Wall.) 107, 112 (1868) (regarding the legal effect of a tie vote affirmance). By certifying this question regarding the statute of limitations, we are not ignoring our obligation to decide a properly presented case; the evenly divided en banc court was simply unable to reach a decision. Based on the unique facts of this case, we find certification advisable “in the proper administration and expedition of judicial business.” Wisniewski, 353 U.S. at 902.

The Government seeks to establish precedent for filing other criminal indictments relating to unresolved civil rights era crimes; however, the tie vote affirmance rendered by the en banc court contains no reasoned analysis and holds no precedential value. Seale gets no relief from his claim of a time-barred prosecution, and the Government gets no precedent upon which to prosecute other “cold cases” under § 1201. This discrete legal issue needs to be resolved by the Supreme Court in order to give guidance in future cases.

We certify the following question 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 resolution of this question hinges upon whether Jackson and the 1972 Act, either alone or in combination, resulted in a reclassification of § 1201 from capital under § 3281 to non-capital under § 3282, and if so, whether that reclassification is retroactively applicable to Seale’s conduct.
Judge Jones, joined by Judges King, Wiener, Clement, and Owen, dissented from the certification:
Although the certification falls within the permissible scope of Sup. Ct. Rule 19, it is not worth this busy court’s time or that of the also-busy Supreme Court to pursue that path. The likelihood of the Court’s accepting certification, based on past usage, is virtually nil. The Court has accepted Rule 19 certifications only four times in more than sixty years. To seek certification of an interlocutory appellate decision is also imprudent, especially where, left to its own devices, the panel decision might ultimately reverse the conviction. Finally, I cordially disagree with Judge DeMoss’s* prediction that this limitations issue may bear on two dozen or so cold cases of ugly racial violence remaining from the early 1960s. The letter from the Civil Rights Division of the Department of Justice was far from clear on this point.
Judge Stewart dissented separately, without comment.

*I suppose that lets the identity of the per curiam author out of the bag.

UPDATE: For additional coverage of and commentary on this new development in Seale, check out Howard Bashman (How Appealing), Lyle Denniston (SCOTUSblog), Steve Vladeck (PrawfsBlawg), and Marcia Coyle (National Law Journal).



Blogger Gritsforbreakfast said...

Off topic, but I'd be curious as to your take on Ibarra v. Harris County et al., which was the subject of a Grits post today.

In particular, I'd love to understand the panel's reference to a "legal standard too permissive of sanctions." What was wrong with the lower court's standard for sanctions? What standard should have been used?

Thought y'all might be the right folks to ask. :)

7/31/2009 02:59:00 PM  
Blogger Brad Bogan said...


I wasn't aware of the opinion until I saw your comment (although I would have been if I'd been keeping up with your blog). Having only skimmed it, I can only offer a couple of comments:

1) I'm glad you mentioned it, because it looks like it merits a close read.

2) It strikes me as odd that the panel designated the opinion as unpublished. While the opinion may be fact-bound enough that it may not provide much guidance for courts and litigants in later cases, that also describes most sufficiency-of-evidence appeals, and the court routinely publishes opinions in those cases. Also, these are pretty eyebrow-raising facts of the sort that the public has a strong interest in knowing. Of course, designating an opinion as "unpublished" doesn't really mean that no one can read it, but it does make it less likely that it'll garner as much attention as a published opinion. But I suppose that's where the blogosphere comes in.

And I'm going to get back in the habit of following your blog. The only reason I slacked off is that, from what I could tell, the browser I use at work was having fits with some hit-counter code you use. I had this problem when trying to read other blogs, as well.

7/31/2009 05:14:00 PM  

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