Wednesday, March 17, 2010

No Prejudice When Government Delays Indictment for Over 40 Years

U.S. Court of Appeals for the Fifth Circuit - U.S. v. Seale, No. 07-60732

A kidnapping was committed in 1964, back when death was an authorized punishment for kidnapping and there was no statute of limitations (SOL). Having insufficient evidence to seek an indictment the State decided to wait on it. Over 43 years later, in 2007, a co-conspirator came forward and the Government secured an indictment (the Feds this time) against Appellant for kidnapping and conspiracy. In 2007, however, death was no longer an authorized punishment and kidnapping falls under the 5-year SOL for offenses not capital.

During trial, Appellant moved to dismiss the case under 18 U.S.C. 3282, which states "[e]xcept as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed." The judge denied the motion, holding that the new 5-year SOL did not apply retroactively and the unlimited SOL which was in place at the time of the offense should govern. Appellant was subsequently convicted in federal district court of 2 counts of kidnapping and one count of conspiracy to commit kidnapping under federal law and sentenced to life in prison.

In his first appeal, the 5th Circuit held that the 5-year SOL applied retroactively and dismissed the case for violation of the SOL. See 542 F.3d 1033 (5th Cir. 2008). The 5th Circuit, however, later decided to hear the case en banc, thus vacating the holding of the first panel. The en banc hearing resulted in a split court, which is, by default, an affirmance of the trial court's holding. See 570 F.3d 650 (5th Cir. 2008). The 5th Circuit certified the issue to the Supreme Court, but cert was denied (although Justices Scalia and Stevens would have granted). See 130 S.Ct. 12 (2009).

Having conclusively (although not convincingly) settled the SOL issue, the 5th Circuit now considered other issues raised, chief among them being that the 43-year pre-indictment delay prejudiced the appellant and/or was a tactical or bad faith delay by the Government.

Highlighting Appellant's inability to establish a due process violation, the 5th Circuit affirmed the conviction and sentence. Notable portions of the opinion are provided below:
Although more than forty years elapsed from the date of the alleged crime to Seale's indictment, this fact alone does not establish a due process violation. The mere passage of time is insufficient to support a due process claim, even if the time lapse prejudiced the defense. Dickerson v. Guste, 932 F.2d 1142, 1144 (5th Cir. 1991). To show an unconstitutional pre-indictment delay, a party must establish two elements: 1) the Government intended to delay obtaining an indictment for the purpose of gaining some tactical advantage over the accused in the contemplated prosecution or for some other bad faith purpose, and 2) that the improper delay caused actual, substantial prejudice to his defense. United States v. Crouch, 84 F.3d 1497, 1523 (5th Cir. 1996) (en banc). The burden is on the defendant to establish both prongs. United States v. Jimenez, 256 F.3d 330, 345 (5th Cir. 2001).
In United States v. Lovasco, 431 U.S. 783 (1977), the Supreme Court distinguished between investigative delay and tactical or bad faith delay. In distinguishing between the two, the Court stated: Investigative delay is fundamentally unlike delay undertaken by the Government solely "to gain tactical advantage over the accused" precisely because investigative delay is not so one-sided. Rather than deviating from elementary standards of "fair play and decency," a prosecutor abides by them if he refuses to seek indictments until he is completely satisfied that he should prosecute and will be able promptly to establish guilt beyond a reasonable doubt. Id. at 795 (internal citations and quotations omitted). Applying the Court's analysis in Lovasco to this case, we are satisfied that the district court did not err in concluding that the delay preceding Seale's indictment was investigative rather than tactical.
Since the defendant bears the burden to show both the Government's bad faith and prejudice to the defendant in order to establish a due process violation based on undue delay, it is not necessary to inquire whether the prosecution's delay caused actual, substantial prejudice to Seale's defense.
My thoughts: While the Government may not have intended a "tactical" delay, the delay certainly worked to a considerable advantage. Back when the State was considering seeking the original indictment, a note was placed in the file instructing them to wait for better timing. What time could be better than 43 years later when a co-conspirator decides to come forward and implicate the Appellant and ample amounts of evidence favorable to the defense are long gone? The country we live in and the sentiments of the potential jurors are substantially different. Heck, even the jury pool from which the potential jurors will be selected must be substantially different from what it would have been in 1964. This delay certainly prejudiced the Appellant and was advantageous to the Government.