IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 5, 2009
No. 07-60732 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JAMES FORD SEALE
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Mississippi, Jackson Division
USDC No. 3:07-CR-9-1
Before JONES, Chief Judge, 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 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.
No. 07-60732
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 (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 cause is finally
disposed of in conformity with the action of the court below, and
that that court can proceed to enforce its judgment. The legal effect
would be the same if the appeal, or writ of error, were dismissed.
Durant v. Essex Co., 74 U.S. (7 Wall.) 107, 112 (1868); see also Neil v. Biggers,
409 U.S. 188, 191-92 (1972); Ohio ex rel. Eaton v. Price, 364 U.S. 263, 263-64
(1960) (“[T]his case is being affirmed ex necessitate, by an equally divided
Court.”). In light of the forgoing, 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. See United States v. Mendoza-Gonzalez, 318 F.3d 663, 667 n.5
(5th Cir. 2003) (“Decisions by an equally divided en banc court have no value as
binding precedent.”).
2