PER CURIAM:
Pursuant to 28 U.S.C. § 1254(2) and Supreme Court Rule 19, a majority of the members of the en banc court have voted to certify the following question of law 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 Supreme Court has jurisdiction to review cases “[b]y certification at any time by a court of appeals of any question of law in any civil or criminal ease as to which instructions are desired, and upon such [568]*568certification the Supreme Court may give binding instructions or require the entire record to be sent up for decision of the entire matter in controversy.” 28 U.S.C. § 1254(2). Supreme Court Rule 19 explains that “[a] United States court of appeals may certify to [the Supreme] Court a question or proposition of law on which it seeks instruction for the proper decision of a case. The certificate shall contain a statement of the nature of the case and the facts on which the question or proposition of law arises. Only questions or propositions of law may be certified, and they shall be stated separately and with precision.” The Supreme Court has cautioned against a question of “objectionable generality” and prefers “a definite and clean-cut question of law.” See United States v. Mayer, 235 U.S. 55, 66, 35 S.Ct. 16, 59 L.Ed. 129 (1914). In keeping with this instruction, we will now provide the relevant facts and frame the dispositive legal question.
I.
A federal jury in the Southern District of Mississippi found James Ford Seale guilty of two counts of kidnaping under 18 U.S.C. § 1201(a) and one count of conspiracy to commit kidnaping under 18 U.S.C. § 1201(c). The district court sentenced him to life imprisonment. The kidnapings occurred in 1964, but the government did not indict Seale until 2007.
Unlike some federal crimes, § 1201 does not include its own limitations period. The residual limitations periods of the criminal code, sections 3281 and 3282, apply to those federal crimes that do not contain their own limitations periods. Section 3281 states that “[a]n indictment for any offense punishable by death may be found at any time without limitation.” In contrast, § 3282 states that “no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found ... within five years next after such offense shall have been committed.” Before the case proceeded to trial, Seale filed a motion to dismiss the indictment, alleging that his prosecution was barred by the five-year statute of limitations applicable to non-capital crimes. See 18 U.S.C. § 3282. After conducting a hearing, the district court orally denied Seale’s motion to dismiss the indictment based upon a finding that the prosecution was governed by the unlimited statute of limitations applicable to capital crimes. See 18 U.S.C. § 3281.
In 1964, kidnaping was punishable by death, so the capital limitations period applied. However, in 1968, the Supreme Court held that the death penalty clause of § 1201 was unconstitutional and severable from the remainder of the statute. See United States v. Jackson, 390 U.S. 570, 581-82, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968). In 1972, the Supreme Court decided Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), which cast serious doubt on whether existing state and federal death penalty regimes were constitutional under the Eighth Amendment. On the recommendation of the Department of Justice, Congress repealed the death penalty clause of § 1201 in order to avoid “facial invalidity” in the wake of Jackson and Fwrman. See Act for the Protection of Foreign Officials and Official Guests of the United States, Pub.L. No. 92-539, § 201, 86 Stat. 1070-73 (1972) (hereinafter referred to as the “1972 Act” or the “1972 amendments”); 118 Cong. Rec. 27116 (1972) (statement of Rep. Poff). Until Congress reinstated the death penalty for kidnaping in 1994, § 1201 carried a five-year statute of limitations.1 See 18 U.S.C. § 3282. Before the [569]*569district court, Seale argued that either Jackson or the 1972 amendments, standing alone, had the effect of changing the limitations period applicable to his prosecution from unlimited to five years.
The district court held that Jackson standing alone did not change the limitations period applicable to Seale’s prosecution. The district court characterized as dicta the holding of two Fifth Circuit cases, which stated that Jackson rendered § 1201 non-capital for all purposes. Instead, it relied on precedent from other circuits holding that judicial invalidation of a death penalty provision in a federal crime as unconstitutional does not change the limitations period applicable to that crime. The district court rejected Seale’s effort to distinguish those cases as not involving judicial severance of the offending language and not involving the effect of Jackson. Regarding the effect of 1972 amendments to § 1201, the district court simply stated that “[Congress’s] repeal was not made retroactive,” rejecting the reasoning of another court that has addressed this particular issue. See United States v. Provenzano, 423 F.Supp. 662 (S.D.N.Y.1976), aff'd, 556 F.2d 562 (2d Cir.1977).2
[570]*570On appeal, Seale reasserted the argument that his prosecution was time-barred by § 3282. A unanimous panel of this court agreed, reversing the district court and rendering a judgment of acquittal. See United States v. Seale, 542 F.3d 1033 (5th Cir.2008). According to the panel, absent a clear statement by Congress to the contrary, substantive changes to federal statutes are applied prospectively but procedural changes are applied retroactively. The panel observed that the 1972 amendments repealed the death penalty clause of § 1201, which had the effect of changing the limitations period to five years. Because changes to the limitations period are procedural in nature, the panel found that those changes apply retroactively to pre-amendment offenses, absent Ex Post Facto concerns that are not implicated in this case. The panel held that the 1972 amendments to § 1201 retroactively changed the limitations period applicable to Seale’s prosecution to five years.
Free access — add to your briefcase to read the full text and ask questions with AI
PER CURIAM:
Pursuant to 28 U.S.C. § 1254(2) and Supreme Court Rule 19, a majority of the members of the en banc court have voted to certify the following question of law 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 Supreme Court has jurisdiction to review cases “[b]y certification at any time by a court of appeals of any question of law in any civil or criminal ease as to which instructions are desired, and upon such [568]*568certification the Supreme Court may give binding instructions or require the entire record to be sent up for decision of the entire matter in controversy.” 28 U.S.C. § 1254(2). Supreme Court Rule 19 explains that “[a] United States court of appeals may certify to [the Supreme] Court a question or proposition of law on which it seeks instruction for the proper decision of a case. The certificate shall contain a statement of the nature of the case and the facts on which the question or proposition of law arises. Only questions or propositions of law may be certified, and they shall be stated separately and with precision.” The Supreme Court has cautioned against a question of “objectionable generality” and prefers “a definite and clean-cut question of law.” See United States v. Mayer, 235 U.S. 55, 66, 35 S.Ct. 16, 59 L.Ed. 129 (1914). In keeping with this instruction, we will now provide the relevant facts and frame the dispositive legal question.
I.
A federal jury in the Southern District of Mississippi found James Ford Seale guilty of two counts of kidnaping under 18 U.S.C. § 1201(a) and one count of conspiracy to commit kidnaping under 18 U.S.C. § 1201(c). The district court sentenced him to life imprisonment. The kidnapings occurred in 1964, but the government did not indict Seale until 2007.
Unlike some federal crimes, § 1201 does not include its own limitations period. The residual limitations periods of the criminal code, sections 3281 and 3282, apply to those federal crimes that do not contain their own limitations periods. Section 3281 states that “[a]n indictment for any offense punishable by death may be found at any time without limitation.” In contrast, § 3282 states that “no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found ... within five years next after such offense shall have been committed.” Before the case proceeded to trial, Seale filed a motion to dismiss the indictment, alleging that his prosecution was barred by the five-year statute of limitations applicable to non-capital crimes. See 18 U.S.C. § 3282. After conducting a hearing, the district court orally denied Seale’s motion to dismiss the indictment based upon a finding that the prosecution was governed by the unlimited statute of limitations applicable to capital crimes. See 18 U.S.C. § 3281.
In 1964, kidnaping was punishable by death, so the capital limitations period applied. However, in 1968, the Supreme Court held that the death penalty clause of § 1201 was unconstitutional and severable from the remainder of the statute. See United States v. Jackson, 390 U.S. 570, 581-82, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968). In 1972, the Supreme Court decided Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), which cast serious doubt on whether existing state and federal death penalty regimes were constitutional under the Eighth Amendment. On the recommendation of the Department of Justice, Congress repealed the death penalty clause of § 1201 in order to avoid “facial invalidity” in the wake of Jackson and Fwrman. See Act for the Protection of Foreign Officials and Official Guests of the United States, Pub.L. No. 92-539, § 201, 86 Stat. 1070-73 (1972) (hereinafter referred to as the “1972 Act” or the “1972 amendments”); 118 Cong. Rec. 27116 (1972) (statement of Rep. Poff). Until Congress reinstated the death penalty for kidnaping in 1994, § 1201 carried a five-year statute of limitations.1 See 18 U.S.C. § 3282. Before the [569]*569district court, Seale argued that either Jackson or the 1972 amendments, standing alone, had the effect of changing the limitations period applicable to his prosecution from unlimited to five years.
The district court held that Jackson standing alone did not change the limitations period applicable to Seale’s prosecution. The district court characterized as dicta the holding of two Fifth Circuit cases, which stated that Jackson rendered § 1201 non-capital for all purposes. Instead, it relied on precedent from other circuits holding that judicial invalidation of a death penalty provision in a federal crime as unconstitutional does not change the limitations period applicable to that crime. The district court rejected Seale’s effort to distinguish those cases as not involving judicial severance of the offending language and not involving the effect of Jackson. Regarding the effect of 1972 amendments to § 1201, the district court simply stated that “[Congress’s] repeal was not made retroactive,” rejecting the reasoning of another court that has addressed this particular issue. See United States v. Provenzano, 423 F.Supp. 662 (S.D.N.Y.1976), aff'd, 556 F.2d 562 (2d Cir.1977).2
[570]*570On appeal, Seale reasserted the argument that his prosecution was time-barred by § 3282. A unanimous panel of this court agreed, reversing the district court and rendering a judgment of acquittal. See United States v. Seale, 542 F.3d 1033 (5th Cir.2008). According to the panel, absent a clear statement by Congress to the contrary, substantive changes to federal statutes are applied prospectively but procedural changes are applied retroactively. The panel observed that the 1972 amendments repealed the death penalty clause of § 1201, which had the effect of changing the limitations period to five years. Because changes to the limitations period are procedural in nature, the panel found that those changes apply retroactively to pre-amendment offenses, absent Ex Post Facto concerns that are not implicated in this case. The panel held that the 1972 amendments to § 1201 retroactively changed the limitations period applicable to Seale’s prosecution to five years. Although the 1972 amendments reduced the available punishment from death to life imprisonment, which was a substantive change, the panel determined that the 1972 amendments were primarily procedural because Jackson had already severed and rendered the death penalty clause unenforceable in 1968. Thus, the panel’s retroactivity holding was based on the combined effect of Jackson and the 1972 amendments.
The government filed a petition for rehearing en banc, which was granted. See United States v. Seale, 550 F.3d 377 (5th Cir.2008). The grant of the petition for rehearing en banc had the effect of vacating the unanimous panel opinion and rendering it non-precedential. See United States ex rel. Marcy v. Rowan Cos., 520 F.3d 384, 389 (5th Cir.2008). The en banc vote called for affirming or reversing the ruling of the district court, which denied Seale’s motion to dismiss the indictment on limitations grounds. By reason of an equally divided 9-9 vote, the en banc court, without opinion, nominally affirmed the district court’s denial of the motion to dismiss. See United States v. Seale, 570 F.3d 650 (5th Cir.2009). The per curiam order of the en banc court is not precedential, see United States v. Mendoza-Gonzalez, 318 F.3d 663, 667 n. 5 (5th Cir.2003), and it did not address the merits of the limitations issue. The appeal was returned to the original panel for consideration of the remaining issues raised by Seale.
II.
On June 12, 2009, Seale filed a “Motion to Certify Question of Law to the Supreme Court of the United States, or In the Alternative, to Rehearing the Case During the September En Banc Term of the Court.”3 In this motion, Seale recommended that the en banc court certify the limitations issue to the Supreme Court pursuant to 28 U.S.C. § 1254(2) because (1) it is a question of law; (2) it is unjust to allow a life sentence to stand based on a nominal affirmance by an equally divided en banc court; (3) the district court’s ruling is irreconcilable with Fifth Circuit precedent; (4) the government has identified at least twenty-two other “cold eases” from the civil rights era that are currently under investigation in this circuit, some of which may face the same limitations issue now before the en banc court; and (5) considerations of judicial economy and Seale’s ill health counsel in favor of expe[571]*571dited resolution of the issue by the Supreme Court.
III.
A majority of the en banc court has determined that certification is appropriate in this case. We reject the government’s suggestion that Seale’s motion was procedurally improper. Seale’s motion explicitly recognizes that the certification decision is discretionary with the en banc court. Some circuits have questioned the propriety of a party recommending certification. See, e.g., Kronberg v. Hale, 181 F.2d 767 (9th Cir.1950). We think the “better view is that counsel may move for or suggest certification, but the matter rests exclusively in the discretion of the court of appeals.” Eugene Gressman et ah, Supreme Court Practice § 9.2 (9th ed.2007).
The Supreme Court originally received jurisdiction to answer certified questions from equally divided circuit courts in 1802, see 2 Stat. 156, 159, although its certification jurisdiction has significantly broadened since that time. See 28 U.S.C. § 1254(2). Two of the four certifications granted between 1946 and 2006 were certified questions from equally divided circuit courts, including one from this court. See United States v. Barnett, 376 U.S. 681, 84 S.Ct. 984, 12 L.Ed.2d 23 (1964); United States v. Rice, 327 U.S. 742, 66 S.Ct. 835, 90 L.Ed. 982 (1946). Because it is the task of the circuit courts “to decide all properly presented cases coming before it,” the Supreme Court has warned that certification is proper only in “rare instances.” Wisniewski v. United States, 353 U.S. 901, 902, 77 S.Ct. 633, 1 L.Ed.2d 658 (1957).
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 Durant v. Essex Co., 74 U.S. (7 Wall.) 107, 112, 19 L.Ed. 154 (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, 77 S.Ct. 633.
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.
QUESTION CERTIFIED.