United States v. Seale

REVISED March 17, 2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

United States Court of Appeals
Fifth Circuit

No. 07-60732 FILED
March 12, 2010

Charles R. Fulbruge III
UNITED STATES OF AMERICA Clerk

Plaintiff - Appellee
v.

JAMES FORD SEALE

Defendant - Appellant

Appeal from the United States District Court for the
Southern District of Mississippi

Before DAVIS, SMITH and DeMOSS, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
In this appeal, we consider several issues raised by James Ford Seale who
was found guilty of two counts of kidnaping and one count of conspiracy to
commit kidnaping, in violation of 18 U.S.C. §§ 1201(a), (c). For the following
reasons, we AFFIRM Seale’s conviction.
I.
A.
Seale was charged both with conspiring with unnamed members of the
White Knights of the Ku Klux Klan (“KKK”) to kidnap Henry Dee and Charles
Moore and the kidnaping of Dee and Moore.
 No. 07-60732

In 1964, Seale was a member of the Bunkley klavern, a local chapter of the
KKK in Franklin County, Mississippi. Members of the Franklin County
population feared that black militants or members of the Black Panther group
were stockpiling guns to lead an insurrection. Dee, an African-American, was
suspected of involvement in this activity.
On the morning of May 2, 1964, Charles Edwards, Clyde Seale,1 Archie
Prather, and Curtis Dunn, all members of the KKK, met with Seale outside the
Bank of Franklin in Meadville, Mississippi to positively identify Dee. When Dee
left the bank, he met with his friend Moore, also an African American. Dee and
Moore began hitchhiking; Seale picked them up and drove to Homochitto
National Forest (the “Forest”). Edwards, Clyde, Prather, and Dunn followed
them.
Upon arrival in the Forest, Edwards, Dunn, and Clyde beat Dee and Moore
with tree branches in an effort to determine where the guns were stored. Dee
and Moore told them the guns were in the First Baptist Church in Roxie,
Mississippi (the “Church”). Edwards, apparently understanding that Dee and
Moore would be killed, asked Dee if he was “right with the Lord.” Edwards,
Clyde, and Prather then departed to get a warrant to search the Church, and
Seale and Dunn stayed with Dee and Moore in the Forest. The last time
Edwards saw Dee and Moore they were alive and getting in the back of Seale’s
car. The Church was searched and no guns were found. After the search, Clyde
and Prather took Edwards to his house. Clyde told Edwards to “keep [his]
mouth shut” and that “everything would be [taken] care of,” a statement
Edwards understood to mean that Dee and Moore would be killed.
Seale later told Edwards what transpired after Edwards had left the
Forest. Jack Seale (“Jack”) and Ernest Parker met Seale at an unknown

1
Seale’s father and head of the Bunkley klavern.

2
 No. 07-60732

location. Dee and Moore were wrapped with duct tape and placed in the trunk
of Parker’s car. Dee and Moore were alive at this time. Seale, his father, and
Parker then drove to an area on the Old Mississippi River known as Parker’s
Island, owned by Parker and his brother. Dee and Moore were taken from
Mississippi to Louisiana via Highway 84, which connected to Highway 65, to
reach Parker’s Island. Specifically, to get to the island by car, the group had to
cross the Old Mississippi River at Natchez and drive through part of Louisiana.2
Seale, Jack, and Parker then separately weighed down Dee and Moore with an
engine block and scraps of metal, took them from Parker’s Landing onto the Old
Mississippi River in a small boat, and rolled them into the water to drown.
Two groups of human remains were recovered in July 1964, and another
group of remains was recovered in October 1964. At trial, John Rogan, one of
the people who recovered the remains, testified that one group was found up-
river from Parker’s Landing while the other group was found down-river from
Parker’s Landing. John Barnes, an engineer with the Army Corps of Engineers,
testified that it was possible to launch a boat from an industrial complex in
Vicksburg, Mississippi, and continue on the Old Mississippi River to the point
where the bodies were found without leaving the state of Mississippi. Seale
argues that this intrastate route was taken as opposed to the interstate route
argued and accepted by the jury at trial.
On January 24, 2007, Seale was indicted. He was charged with one count
of conspiracy to commit kidnaping in violation of 18 U.S.C. § 1201(c) and two
counts of kidnaping in violation of 18 U.S.C. § 1201(a). The defendant filed
numerous pretrial motions, including a motion to dismiss based on the statute
of limitations, a motion to dismiss based on pre-indictment delay, a motion to
suppress the defendant’s 1964 statement to the FBI, and a motion in limine to

2
The area north of the Old Mississippi River is in Louisiana, while the area to the
south is in Mississippi. Dee and Moore were found on the Mississippi side of the river.

3
 No. 07-60732

exclude evidence of Seale’s motive. After lengthy hearings, the district court
denied these motions. At the close of the Government’s case, Seale moved for
judgment of acquittal, renewing his previous motions for dismissal. The court
denied this motion. At the close of all the evidence, Seale renewed his motion for
judgment of acquittal, which the district court also denied. The jury returned
a verdict of guilty on all counts in the indictment. The district court sentenced
Seale to life imprisonment on each of the three counts. Seale timely appealed.

B.
On appeal, Seale argued, among other issues, that his prosecution was
time-barred by 18 U.S.C. § 3282. A panel of this court agreed, reversed the
district court judgment, and rendered a judgment of acquittal. See United States
v. Seale, 542 F.3d 1033 (5th Cir. 2008). The Government filed a petition for
rehearing en banc which was granted by this court and had the effect of vacating
the panel opinion. See United States ex. rel. Marcy v. Rowan Cos., 520 F.3d 384,
389 (5th Cir. 2008) (explaining that when this court grants a rehearing en banc,
the panel opinion is vacated). Following argument, the en banc court was
equally divided and the court nominally affirmed the district court’s denial of the
motion to dismiss. United States v. Seale, 570 F.3d 650 (5th Cir. 2009). The
appeal was returned to the original panel for consideration of the remaining
issues raised by Seale.
Following the en banc court’s decision, Seale filed a Motion to Certify
Question of Law to the Supreme Court of the United States. The en banc court
by majority vote granted the motion and certified the question to the Supreme
Court. United States v. Seale, 577 F.3d 566 (5th Cir. 2009). However, the
Supreme Court dismissed the certified question, with Justices Scalia and
Stevens dissenting. United States v. Seale, 130 S.Ct. 12 (2009).

4
 No. 07-60732

Accordingly, this panel now addresses the remaining issues raised by
Seale in this appeal.
II.
Seale contends first that the district court erred by denying his motion to
dismiss based on the Government’s delay in seeking an indictment.
During the months following the May 2, 1964 disappearances of Dee and
Moore, federal law enforcement agents investigated the incident. Federal agents
interviewed witnesses and potential suspects, obtained warrants to search for
physical evidence, and sent divers to search for remains in the river. On
November 6, 1964, Mississippi authorities arrested Seale and Edwards for the
murders of Dee and Moore; however, on January 11, 1965, at the request of the
Franklin County District Attorney, the charges were dismissed without
prejudice. The United States obtained an indictment against Seale on January
24, 2007.
Seale argued to the district court that the Government’s delay in bringing
the indictment was in bad faith. After a hearing on the motion, the district court
concluded that Seale’s argument was not supported by the facts. Specifically,
the district court found that the Government’s delay was caused by its inability
to establish federal jurisdiction for the kidnaping of Dee and Moore. In
dismissing the motion, the district court ruled, “Once the Government
determined that this court, a federal court, could have jurisdiction based upon
newly discovered matters, then the Federal Government moved this litigation
forward.” The district court also found that Seale failed to prove that the delay
caused him actual and substantial prejudice.
In reviewing a claim of due process violation on pre-indictment delay, the
district court’s factual determinations are reviewed for clear error; its
conclusions of law, de novo. United States v. Avants, 367 F.3d 433, 441 (5th Cir.
2004).

5
 No. 07-60732

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).
With respect to the first prong, Seale points to a Memorandum written by
federal agents in the period shortly after Seale’s arrest which concluded that “it
would be more advantageous to present the matter to a Grand Jury at a later
date.” This, Seale maintains, is evidence that the Government’s decision not to
indict Seale for more than forty years was in bad faith. The Government,
however, contends that Seale’s reading of the Memorandum is incorrect;
specifically, the Government argues that the reason behind its delay–to gain
more information about the crimes–was justifiable. The district court accepted
the Government’s interpretation of the memos.
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

6
 No. 07-60732

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. In a Memorandum dated June of 1965, the Assistant
Attorney General of the Civil Rights Division expressed concern to the Director
of the F.B.I. that in order for Seale to be indicted under 18 U.S.C. § 1201, the
Government would be required to show that Seale had actual or constructive
knowledge that the victims were transported across state lines. The Assistant
Attorney General wrote, “In light of [this element], and as part of your
continuing investigation, please seek to establish this knowledge on the part of
[Seale].” Central to the FBI’s difficulty in acquiring evidence to indict Seale
under § 1201 was the silence of the suspects and the unwillingness of any
witnesses to come forward and testify. Accordingly, the district court did not err
in concluding that it was only after the Government obtained Edwards’
cooperation that the United States had enough evidence to justify proceeding
with a federal indictment against Seale.3 Therefore, the district court did not err
in rejecting Seale’s contention that the Government delayed its case in bad faith
to gain a tactical advantage. To the contrary, the evidence supports the district

3
At trial, Edwards testified that Seale told him about the details of the route the co-
conspirators took once they had kidnaped Dee and Moore.

Q: James Seale told you that they went out to Parker’s land?
A: The island, Parker’s Island, yes, ma’am.
Q: Did he tell you how they got there?
A: They went across the river at Natchez, went up 84 and took 65 up there.
Q: Is it your understanding that that was going through part of the state of
Louisiana?
A: Yes, ma’am.

7
 No. 07-60732

court’s interpretation of the Department Of Justice memoranda that the
Government delayed because it lacked necessary evidence to proceed with a
prosecution.
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.

III.
A.
Seale argues next that the district court erred in refusing to suppress the
oral statement that Seale gave to FBI agents after his arrest.
When Seale was arrested on November 6, 1964, he was transported from
his home in Franklin County to police headquarters in Jackson, Mississippi.
Although he was arrested by two Mississippi Highway State Police (MHSP)
officers, two FBI agents also accompanied Seale to Jackson. While en route, the
MHSP officers asked Seale questions about the murders of Dee and Moore.
Seale was silent. About thirty minutes into the trip, an FBI agent said to Seale:
We know that on Saturday afternoon May 2, 1964, you picked up in
your car Henry Dee and Charles Moore, two Negro boys from Roxie.
You and Charles Edwards and others took them to some remote
place and beat them to death. You then transported and disposed
of their bodies by dropping them in the Mississippi River. You
didn’t even give them a decent burial. We know you did it, you
know you did it, the Lord above knows you did it.
Seale responded by saying, “Yes, but I’m not going to admit it, you are going to
have to prove it,” and adding, “I’m not going to say anything more.”
Seale filed a motion to suppress the statement made to the FBI agent,
arguing that it was involuntarily given and thus illegally obtained. Seale
contended that since his arrest took place before the Supreme Court’s decision

8
 No. 07-60732

in Miranda v. Arizona, the pre-Miranda standard of voluntariness applied.4
The Government and the district court also assumed that the pre-Miranda
standard applied.
Applying the pre-Miranda standard advocated by Seale and the
Government, the district court denied Seale’s motion to suppress. In his initial
appellate brief to this court, Seale argued that the district court erred in denying
his motion to suppress his statement under the pre-Miranda standard of
voluntariness: “The alleged confession occurred before the Supreme Court
decided Miranda. This Court must therefore rely on pre-Miranda case law to
determine the applicable test for a claim of involuntary confession. The test is
set forth in Haynes v. Washington.” In its appellate brief, however, the
Government recognized that Seale, the Government, and the district judge had
all been in error with respect to the standard that controlled the admissibility
of Seale’s statement because the Supreme Court had clearly stated in Johnson
v. New Jersey, “Miranda applies only to cases in which the trial began after the
date of our decision.” 384 U.S. 719, 721 (1966) (emphasis added). See also Bell
v. Alabama, 367 F.2d 243, 247 (5th Cir. 1966). In his reply brief, Seale
acknowledged his previous error and sought for the first time to have his
statement suppressed under the Miranda standard.

B.

4
In his Memorandum of Authorities to the district court in support of his motion to
suppress, Seale stated, "In order to determine whether a confession or admission is voluntary,
the Court looks at the totality of circumstances and should include circumstances such as the
level of the defendant's education or intelligence, the absence of advice to the defendant about
his constitutional rights, the use of physical force and/or the use of psychological coercion."
Before ruling on the motion, the trial judge laid out the arguments he had considered stating,
“The defendant acknowledges that the facts and circumstances preceded the United States
Supreme Court decision in Miranda.”

9
 No. 07-60732

In his reply brief, Seale argues that despite the erroneous and misleading
argument he presented both to the district court and to this court, he properly
preserved for appeal his argument that the Miranda standard applies. We now
address that argument and examine first the contrast between the Haynes (pre-
Miranda) standard and the Miranda standard for deciding the admissibility of
a confession.
1.
Before Miranda was decided, a voluntariness test, which depended upon
the totality of circumstances surrounding the accused’s statement, was used to
determine whether the due process clause of the Constitution required exclusion
of a confession. LAFAVE AND ISRAEL, CRIMINAL PROCEDURE 341 (2009). To make
this voluntariness determination, courts were invited to inquire into a number
of circumstances such as the education of the defendant, the duration of the
interrogation, whether the statement was made in an atmosphere of substantial
coercion and inducement, whether the defendant was alone in the hands of the
police, whether the defendant had a reason to believe that the police had the
power to carry out their threats, and other inquiries relevant to voluntariness.
See generally Fikes v. Alabama, 352 U.S. 191 (1957); Leyra v. Denno, 347 U.S.
556 (1954), Lynumn v. Illinois, 372 U.S. 528 (1963); Haynes v. Washington, 373
U.S. 503 (1963) As the Court in Haynes v. Washington stated, “The true test of
admissibility is that the confession is made freely, voluntarily, and without
compulsion or inducement of any sort. And of course, whether the confession
was obtained by coercion or improper inducement can be determined only by an
examination of all the attendant circumstances.” 373 U.S. at 513. The objective
of this inquiry was to determine whether the accused’s due process rights had
been violated.
The Court in Miranda, however, concluded that the totality of
circumstances analysis was no longer the inquiry to determine the admissibility

10
 No. 07-60732

of a statement given when a person was in custody. Rather than looking at the
many circumstances surrounding the statement, the Court announced that
admissibility would be based on whether specific warnings were given by law
enforcement to the offender:
Accordingly we hold that an individual held for interrogation must
be clearly informed that he has the right to consult with a lawyer
and to have the lawyer with him during interrogation under the
system for protecting the privilege we delineate today. As with the
warnings of the right to remain silent and that anything stated can
be used in evidence against him, this warning is an absolute
prerequisite to interrogation. No amount of circumstantial evidence
that the person may have been aware of this right will suffice to
stand in its stead. Only through such a warning is there
ascertainable assurance that the accused was aware of this right.
Miranda v. Arizona, 384 U.S. 436, 471–72 (1966).5 See also Johnson v. New
Jersey, 384 U.S. 719, 729–30 (1966). With this rule, the Court shifted its focus
of admissibility from the due process clause of the Fourteenth Amendment to the
Fifth and Sixth Amendment rights of the accused, including the right to counsel
and the right against self incrimination.
Despite Miranda’s clear repudiation of the totality of the circumstances
test that Seale argued should apply to his confession, Seale now contends that
he preserved his Miranda argument for appeal. The dissent also argues that
Seale preserved his argument, because “Miranda did not overrule or supplant
the voluntariness test.” Insofar as it is relevant in this case, we disagree.6 No

5
See also LAFAVE AND ISRAEL, CRIMINAL PROCEDURE 367-68 (2009) (“Miranda thus
represents a striking contrast to . . . the Court’s usual ‘totality of circumstances’ approach to
the due process voluntariness issue.”).
6
We agree that voluntariness issues may have relevance post-Miranda. Stephen J.
Schulhofer, Confessions and the Court, 79 MICH. L. REV. 865, 873 (1981). For example, after
giving a Miranda warning, the government could not torture a defendant and coerce a
confession and then argue that it is admissible because the warnings were given. See Berkemer
v, McCarty, 468 U.S. 420, 433 n.20 (1984) (“We do not suggest that compliance with Miranda
conclusively establishes the voluntariness of a subsequent confession. But cases in which a
defendant can make a colorable argument that a self-incriminating statement was ‘compelled’

11
 No. 07-60732

case demonstrates the contrast between the two standards more clearly than
Dickerson v. United States, 530 U.S. 428 (2000).
In Dickerson, the Court considered the constitutionality of a federal
statute 18 U.S.C. § 3501 pertaining to the admissibility of confessions. Id. The
statute was passed by Congress two years after Miranda was decided and set
forth a series of factors the trial judge should follow in determining the
voluntariness of a defendant’s statement. Id. at 435–36.7 The Dickerson court
recognized that § 3501(b) essentially codified the pre-Miranda totality of
circumstances test for admissibility. Id. at 442–43. The threshold question
before the Court was whether the statute’s totality of circumstances test
conflicted with the admissibility standard the Supreme Court adopted in

despite the fact that the law enforcement adhered to the dictates of Miranda are rare.”)
In the briefs to this court, Seale makes no argument that the admissibility of his
statement should not be governed by Miranda. See Miranda, 384 U.S. at 461. Accordingly
the totality of the circumstances test is not applicable to this case.
7
18 U.S.C. § 3501 reads, in pertinent part:

(b) The trial judge in determining the issue of voluntariness shall take
into consideration all the circumstances surrounding the giving of the
confession, including (1) the time elapsing between arrest and
arraignment of the defendant making the confession, if it was made after
arrest and before arraignment, (2) whether such defendant knew the
nature of the offense with which he was charged or of which he was
suspected at the time of making the confession, (3) whether or not such
defendant was advised or knew that he was not required to make any
statement and that any such statement could be used against him, (4)
whether or not such defendant had been advised prior to questioning of
his right to the assistance of counsel; and (5) whether or not such
defendant was without the assistance of counsel when questioned and
when giving such confession.

The presence or absence of any of the above-mentioned factors to be
taken into consideration by the judge need not be conclusive on the issue
of voluntariness of the confession.

12
 No. 07-60732

Miranda. Id. at 437. The Dickerson court concluded that the two rules were in
conflict and that § 3501(b) reflected Congress’ intent to overrule Miranda. The
Court stated:
In Miranda, the Court noted that reliance on the traditional
totality-of-the-circumstances test raised a risk of overlooking an
involuntary custodial confession, a risk that the Court found
unacceptably great when the confession is offered in the case in
chief to prove guilt. The Court therefore concluded that something
more than the totality test was necessary . . .§ 3501 reinstates the
totality test as sufficient. Section 3501 therefore cannot be
sustained if Miranda is to remain the law.

Id at 442 (internal citation omitted).
The Court observed that Miranda shifted the focus of the question of
admissibility from determining whether a defendant’s will was overwhelmed to
protecting a defendant from the dangers of deceptive police interrogation tactics
and the risk that his Fifth Amendment right against self incrimination and
Sixth Amendment right to counsel would be violated:

[Miranda] concluded that the coercion inherent in custodial
interrogation blurs the line between voluntary and involuntary
statements, and thus heightens the risk that an individual will not
be accorded his privilege under the Fifth Amendment not to be
compelled to incriminate himself. Accordingly, we laid down
concrete constitutional guidelines for law enforcement agencies and
courts to follow. Those guidelines established that the admissibility
in evidence of any statement given during custodial interrogation of
a suspect would depend on whether the police provided the suspect
with four warnings.

Id. at 435 (internal citations and quotation marks omitted).
Perhaps more important than the purely legal differences between the pre-
Miranda and Miranda standard of admissibility, the rule announced in Miranda
effected a sea change in the day to day trials of motions to suppress confessions.

13
 No. 07-60732

As stated above, for custodial interrogations before Miranda, the parties and the
court were required to consider multiple factors to determine the admissibility
of the statement; after Miranda, the judge’s inquiry was straightforward: did the
defendant receive the warnings before making the statement. If the answer to
this question is no, an irrebuttable presumption arises that the statement made
without benefit of the warning was illegally obtained and must be suppressed.
See Oregon v. Elstad, 470 U.S. 298, 307 (1985). Seale’s case provides an
excellent example of the practical difference in administering both standards.
In his motion to suppress, Seale argued that the court should weigh a host of
factors–none of them dispositive in determining the admissibility of Seale’s
statement: was Seale given a warning when the officers picked him up?; how
long was the questioning in the car?; did the officers elbow Seale when he gave
them an answer?; did the officers appeal to Seale’s moral conscience to ensure
that the victims had received a Christian burial? Upon recognizing in his reply
brief on appeal that Miranda applies to the statement, Seale spends little more
than a page of his brief arguing the straightforward Miranda standard: was
Seale given the required warning.
For all of the these reasons, it is clear to us that the rule announced in
Miranda, with its roots in the Fifth and Sixth Amendments, and the totality of
circumstances test, with its roots in the Due Process Clause of the Fourteenth
Amendment, are vastly different and, as Dickerson makes clear, in conflict with
each other. We now turn to Seale’s objection to the confession’s admissibility
and whether it was adequate to preserve the argument he makes to us that the
district court erred in admitting the statement because Miranda warnings were
not given.
2.
Seale’s statement about the kidnaping of Dee and Moore occurred in 1964
before Miranda was decided in 1966, and Seale was not indicted and tried until

14
 No. 07-60732

2007. According to the Supreme Court’s decision in Johnson v. New Jersey, the
standard announced in Miranda applies to this case. Johnson v. New Jersey,
384 U.S. at 719. As discussed in § III - A, in every presentation of his
suppression motion to the district court and to this court–save for his reply brief
to this court–Seale’s counsel made it clear that he was objecting to the
voluntariness of Seale’s statement under the pre-Miranda standard as
articulated in Haynes.
Thus Seale has two potential problems in establishing that he properly
preserved his argument that the Miranda standard applies and his statement
should have been suppressed for that reason: (1) rather than directing the
district court to the straightforward Miranda standard, which asks whether a
proper warning was given to him, Seale affirmatively asked the judge to consider
the multi-factor test announced in Haynes in determining whether the statement
was voluntary and properly admissible; (2) Seale affirmatively argued to this
court on appeal that the Haynes standard–rather than the Miranda standard–
applied; his argument to us on that issue was that the district court erred in
applying the Haynes standard, not that the judge applied the wrong standard.
FED. R. EVID. 103(a)(1) sets out the manner in which objections must be
made to preserve error for appeal:
(a) Error may not be predicated upon a ruling which admits or
excludes evidence unless a substantial right of the party is affected
and
(1) Objection. In case the ruling is one admitting evidence, a
timely objection or motion to strike appears of record stating
the specific ground of objection, if the specific ground was not
apparent from the context.

This rule serves to ensure that “the nature of the error [is] called to the attention
of the judge, so as to alert him to the proper course of action and enable opposing
counsel to take corrective measures.” Advisory Committee's Note to Rule 103(a)

15
 No. 07-60732

(1972). See also 1 S. BROWN, MCCORMICK ON EVIDENCE 253 (6th ed. 2006) (“If the
administration of the exclusionary rules of evidence is to be fair and workable
the judge must be informed promptly of contentions that evidence should be
rejected, and the reasons therefor. The burden is placed on the party opponent,
not the judge.”).
We have not located cases with facts as egregious as this case: where an
appellant affirmatively misleads the court regarding the legal standard that
controls the objection. Until Seale filed his reply brief in this court, Seale never
strayed from his erroneous argument that the pre-Miranda standard of general
voluntariness applied. The dissent recognizes that Seale never argued that
Miranda applied to this case but nevertheless maintains that Seale's argument
that he had not been advised of his right to remain silent sufficiently preserved
the argument he now makes that his statement should have been suppressed
because the Miranda warnings were not given. But Seale's reference in his
motion and memorandum to the failure to give a warning was in the context of
his discussion of the Haynes factors. He never put the district court on notice
that the admissibility of his statement should be analyzed under Miranda.
FED. R. EVID. 103(a)(1) and the cases interpreting that rule establish that
when the objection is not specific as to the legal basis for the objection, the error
is not preserved and can only be reviewed for plain error.
In United States v. Mejia, 844 F.2d 209 (5th Cir. 1983), we addressed an
issue on appeal under plain error review because counsel’s timely objection
lacked the specificity required by FED. R. EVID. 103(a)(1). In Mejia, the
prosecution produced evidence tending to show that defendant Mejia’s acts
indicated a guilty conscience. Id. at 214. To rebut this evidence, Mejia attempted
to elicit testimony from a witness who would testify about a conversation he had
with Mejia to show that Mejia had an innocent state of mind. Id. The
prosecution, however, objected to the testimony, arguing that it was hearsay.

16
 No. 07-60732

Id. The prosecution’s objection was sustained and the testimony was excluded.
Id. On appeal, Mejia argued that the testimony he sought to offer should have
been admitted at trial since it fell into the hearsay exception of Fed. R. Evid.
803(3), then existing mental, emotional, or physical condition. Id. This court
rejected Mejia’s argument and stated:
Whatever the merit of Mejia’s argument, his trial attorney failed to
preserve this issue for appeal because he did not argue this hearsay
exception to the trial court. We have long held that, absent a
showing of manifest injustice, a litigant may not raise a theory on
appeal that was not presented to the district court.

Id. at 214–15 (internal citations and quotations omitted).

Our sister circuits require a similar degree of specificity to preserve an
argument for appeal. In United States v. Sims, 617 F.2d 1371 (9th Cir. 1980),
the defendant offered into evidence a statement contained within an FBI report.
The prosecution objected that the report was hearsay while the defense
maintained that the report came in under the business records exception. Id. at
1376. The trial judge ruled that the report was not admissible. Id. On appeal,
the defendant argued, for the first time, that the statement in the report was not
hearsay because it was not offered to prove the truth of the statement. Id. The
defendant also reurged his business records exception argument made before the
district court. Id. The Ninth Circuit addressed the business records exception
objection under an abuse of discretion standard but reviewed the argument that
the statement itself was not hearsay for plain error, stating:
Since the other grounds were not raised in the district court, this
court must employ a much more limited scope of review in
considering them. A party must make known to the court at the
time the ruling or order is made or sought . . . the action which he
desires the court to take or his objection to the action of the court
and the grounds therefor. The presentation of additional
evidentiary theories on appeal is inconsistent with the salutary
purpose of the timeliness requirement to allow the trial judge to

17
 No. 07-60732

make an informed ruling based on the issues as framed by the
parties before the evidence is excluded.

Id. at 1377 (citations and internal quotations omitted).
Because the primary purpose of FED. R. EVID. 103(a)(1) is to assist the
judge in avoiding error and correctly ruling on evidentiary objections, the
corollary is that to preserve the objection, the “specific ground” for the stated
objection must be the correct one. United States v. O’Brien, 435 F.3d 36, 39 (1st
Cir. 2006) (citing United States v. Diaz, 300 F.3d 66, 75-76 (1st Cir. 2002)). In
O’Brien, during cross-examination of the defendant, the prosecution made a
reference to the defendant’s silence after the defendant had received his
Miranda warning. Id. at 38. In response, counsel for the defendant objected,
arguing that the prosecution’s statement should be stricken since “[Defendant]
was not under any general obligation to speak to the FBI.” Id. at 39. The
prosecutor’s statement clearly violated the Supreme Court’s holding in Doyle v.
Ohio, 426 U.S. 610 (1976), where the Court held that all references to a
defendant’s silence after receiving his Miranda warnings were unconstitutional.
Id. The First Circuit found that the ground counsel for the defendant argued
was wrong since counsel did not reference Doyle. Id. The Court further stated:
This is not necessarily a criticism of defense counsel. No lawyer
carries around in his or her head all of the endless precedents on
evidence and procedure, and while it would be strange for a defense
counsel not to know the Miranda rule, many lawyers have never
heard of Doyle. And neither have many judges: that is why
objecting counsel either had to point to Doyle or a counterpart case
or had to articulate an objection that was in substance close to the
rationale of Doyle

The law is nothing if not practical. Where objecting counsel offers
the right objection, the judge has to get the ruling right and will
otherwise be reversed unless the error is patently harmless. If the
wrong objection or none at all is offered, the conviction will
ordinarily be reversed if (1) an error occurred in admitting evidence;

18
 No. 07-60732

(2) the error was plain; (3) it likely altered the result; and (4) it
reflects some fundamental unfairness.

Id. Accordingly, the First Circuit held, plain error review was appropriate.
In his reply brief to this court, Seale argues that despite his misleading
argument to the district court, his objection to the admission of his alleged
confession was “ample and timely to bring the alleged . . . error to the attention
of the trial court and enable it to take appropriate corrective action.” In support
of this contention, Seale cites three cases, all distinguishable from this case.
In United States v. Williams, 985 F.2d 749 (5th Cir. 1993), defendants
were charged with aiding and abetting the use of a firearm in relation to a drug
offense. On appeal, the defendants contended that the court failed to instruct
the jury properly on the requisite intent for this offense. Id. at 754. In
determining the proper standard of review, this court looked to the substance
and specificity of counsel’s objection to the jury instruction. Id. at 755. In his
initial objection, counsel objected that the charge failed to require the jury to find
the defendants had knowledge of the presence of the weapon. Id. In response,
the trial court agreed to amend the charge, stating that the new charge “will
satisfy “knowledge.” Id. After the court amended the charge, however, it did not
adequately cure the defect to require a finding of knowledge. Id. Nevertheless,
after the court amended the instruction, counsel did not make a further objection
to the amended charge. Id.
Despite counsel’s failure to make an additional objection we concluded
that counsel’s first objection“was adequate to alert the court of her position that
the defendant’s knowledge of the presence of the weapon was an essential
element of the offense.” Id. For this reason, we held that the argument was
preserved in accordance with FED. R. EVID. 103(a)(1). Id. Unlike Williams,
Seale never made the proper objection so as to alert the trial court that the
Miranda standard applied and to determine, under the proper standard,

19
 No. 07-60732

whether Seale’s statement was admissible. Indeed, Seale’s affirmative
misrepresentation of the correct standard did more than fail to alert the court
to the proper standard, it affirmatively led the court into error.
Furthermore, Seale’s reliance on Osborne v. Ohio, 495 U.S. 103 (1990) and
Douglas v. Alabama, 380 U.S. 415 (1990) is misplaced. In both of these cases,
counsel’s objections were sufficiently specific to afford the trial court the
opportunity to take appropriate action.8
In short, Seale points to no case holding that a party who affirmatively
asked the trial court to apply an incorrect legal standard nevertheless preserved
his argument for appeal that the lower court erred in failing to apply the correct

8
In Douglas v. Alabama, counsel for the defendant objected three times to prosecution’s
reading of a confession to the jury, each one sufficient to give the trial judge the ability to take
corrective action. 380 U.S. 415 (1990). The error that counsel brought to the attention of the
trial court was the confession’s infringement on the defendant’s Sixth Amendment right to
confront his accuser; in this regard, his objection was sufficient to give the trial court the
ability to cure the error. Id. at 421. At trial, counsel stated “I’d first like to object to the
reading of this purported confession on the grounds that it is hearsay evidence, that it was
made outside the hearing of this defendant, it was not subject to cross-examination, and we
move to exclude it from evidence. Id. at 421 n.4. Therefore, the Supreme Court stated, “On
these facts, it is clear that the defense brought the objection to the attention of the court at
several points, at any of which corrective action could have been taken by stopping the
questioning, excusing the jury, or excluding the evidence.” Id. at 423.

In Osborne v. Ohio, the defendant was charged with possessing child pornography. 495
U.S. 103 (1990). Under the statute, the State had to prove knowledge and that the defendant
“possessed material depicting a lewd exhibition or graphic focus on genitals.” Id. at 123. At
the onset of trial, counsel for defendant argued that the statute–specifically, the language
“lewd exhibition”–was unconstitutionally overbroad. Id. at 124. The trial judge overruled the
motion. Id. When presented with an opportunity to object to jury instruction, defendant failed
to renew his objection. Id. The Supreme Court, relying on its decision in Douglas, held that
defendant’s attorney pressed the issue of the State’s failure of proof on lewdness before the trial
court and,

[U]nder the circumstances, nothing would be gained by requiring Osborne’s
lawyer to object a second time, specifically to the jury instructions. The trial
judge, in no uncertain terms, rejected counsel’s argument that the statute as
written was overbroad.

Id.

20
 No. 07-60732

standard. We therefore review the failure of the trial court to suppress Seale’s
statement under a plain error standard.
Moreover, we have an independent ground to review Seale’s argument for
plain error. It is uncontested that Seale argued to this court for the first time
in his reply brief that the Miranda standard applied. Ordinarily, we do not
consider any argument made for the first time in a reply brief. Dufrene v.
Browning-Ferris, Inc., 207 F.3d 264, 268 (5th Cir. 2000). However, if we do
address such an argument, we review it at most for plain error. Id. See also
United States v. Gonzales, 661 F.2d 488, 493 (5th Cir. 1981) (where appellee’s
brief first raises issue and appellant responds to appellee’ in his reply brief, we
review for plain error).
C.
Seale argues that even under the plain error standard of review, the
district court committed reversible error in admitting Seale’s statement. Federal
Rule of Criminal Procedure Rule 52(b) provides “a plain error that affects
substantial rights may be considered even though it was not brought to the
court’s attention.” To grant relief under this rule, the appellate court must
determine (1) that there was an error, that is, a deviation from a legal rule, (2)
that the error is “plain,” meaning obvious, and (3) that the error affected
substantial rights, meaning that it must be prejudicial and affect the outcome
of the district court proceeding. See United States v. Olano, 507 U.S. 725,
731–35 (1993). Finally, because granting relief under plain error review is
discretionary rather than mandatory, the court of appeals should correct a plain
error affecting substantial rights only if the error “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.” Id. at 736 (internal
quotation marks omitted); accord United States v. Mansolo, 129 F.3d 749, 751

21
 No. 07-60732

(5th Cir. 1997). The Supreme Court has also held that Rule 52(b) applies
regardless of the seriousness of the error, including constitutional error.9
It is uncontested that the first two requirements set out in Olano are
satisfied. First, there was error. In Johnson v. New Jersey, 384 U.S. at 734 , the
Supreme Court announced that the Miranda rule applies to all trials that begin
after the Court’s 1966 decision in Miranda. Since Seale was tried in 2007, the
standard set-forth in Miranda should have been applied when determining
whether Seale’s statement to the FBI investigator should have been suppressed.
Because the FBI agent gave no warning to Seale as Miranda requires, the
statement should have been excluded under that standard. Thus, the district
court was in error. Seale also established that the error was obvious. See Olano,
507 U.S. at 734. The Supreme Court’s holding in Johnson that Miranda applied
to all trials conducted after 1966 had been established over forty years when the
trial occurred.
But even though the error was obvious, it must also affect substantial
rights, meaning that it must be prejudicial and affect the verdict. See id. at 734–
35. Resolving the effect of Seale’s statement on the jury’s verdict is not an easy
task. On the one hand, the statement is far from an unequivocal admission of

9
See, e.g., Johnson v. United States, 520 U.S. 461, 466 (1997) (“Petitioner argues that
she need not fall within the ‘limited’ and ‘circumscribed’ strictures of Olano, because the error
she complains of here is ‘structural,’ and so is outside Rule 52(b) altogether. But the
seriousness of the error claimed does not remove consideration of it from the ambit of the
Federal Rules of Criminal Procedure.”); United States v. Cotton, 535 U.S. 625, 634 (2002)
(“[Defendants] emphasize that the Fifth Amendment grand jury right serves a vital function
in providing for a body of citizens that acts as a check on prosecutorial power. No doubt that
is true. But that is surely no less true of the Sixth Amendment right to a petit jury, which,
unlike the grand jury, must find guilt beyond a reasonable doubt. The important role of the
petit jury did not, however, prevent us in Johnson from applying the longstanding rule ‘that
a constitutional right may be forfeited in criminal as well as civil cases by the failure to make
timely assertion of the right.’”) (citation omitted).

22
 No. 07-60732

guilt. Seale’s counsel repeatedly emphasized this fact and characterized the
statement as nothing more than a challenge to law enforcement and an
indication of Seale’s unwillingness to aid the FBI in their investigation. On the
other hand, in its rebuttal argument to the jury, the prosecutor characterized the
statement as “words of a defiant, arrogant, guilty man, confident that he would
never face prosecution.”
Nevertheless, the evidence was clearly sufficient to support the conviction
without the statement. Edwards, whose testimony the jury apparently accepted,
gave the jury all of the gory details of the horrible crime. Edwards’ testimony
was not totally uncorroborated. His testimony was corroborated by physical
evidence of the location of the victims’ remains in the Mississippi River and the
manner in which they were weighed down to prevent their discovery. At trial,
Edwards testified how he and other co-conspirators left Seale and the victims to
seek out the Franklin County Sheriff to search the Roxie Baptist Church for
guns. According to Edwards, no guns were found. Although no law enforcement
record of the search was produced at trial, the personal diary of Reverend
Briggs, Pastor of the Roxie Baptist church, was admitted. In a diary entry dated
Saturday, May 2, 1964, Briggs wrote that law enforcement and the KKK came
to search the Roxie Baptist church for guns. Briggs’ account of the event was
independently corroborated by his daughter. This testimony also supports
Edwards’ testimony of the details of the kidnaping. The Government also
produced evidence of Seale’s membership in the KKK, as well as his violent and
racially inflammatory statements, all of which were probative of Seale’s motive
and intent.
We conclude that we need not resolve whether the admission of Seale’s
statement affected his substantial rights. Assuming without deciding that the
statement had such an effect, we decline to exercise our discretion under
Oleano’s fourth prong to grant Seale relief on this claim.

23
 No. 07-60732

In Johnson v. United States, 520 U.S. 461, 470 (1997), the defendant who
was convicted for perjury, argued on appeal that the trial court’s failure to
instruct the jury on materiality was plain error. The Supreme Court recognized
that the error was obvious. Id. at 467–68. It found it unnecessary, however, to
resolve whether that error affected the defendant’s substantial rights. Id. at 469.
The Court reasoned that:
On this record there is no basis for concluding that the error
seriously affect[ed] the fairness, integrity or public reputation of
judicial proceedings. Indeed, it would be the reversal of a conviction
such as this which would have that effect. Reversal for error,
regardless of its effect on the judgment, encourages litigants to
abuse the judicial process and bestirs the public to ridicule it. No
miscarriage of justice will result here if we do not notice the error.

Id. at 470 (citations and internal quotations omitted). Similarly, we conclude
that the trial court’s error in admitting Seale’s statement did not result in a
manifest miscarriage of justice. For reasons discussed above, we are satisfied
that the Government presented a strong case of guilt. While the defendant’s
statement may have been helpful to the Government, it was certainly not the
centerpiece of its case.
We also decline to exercise our discretion to give relief to Seale because of
the defendant’s responsibility for the court’s error. Although in this case both the
defendant and the Government were in error in arguing the incorrect standard
for the admissibility of Seale’s statement, Seale’s counsel had the primary
responsibility of marshaling the facts and law to persuade the court to exclude
Seale’s statement.
In sum, because we conclude that no miscarriage of justice will result here
if we do not notice this plain error, we decline to do so and find that the
admission of Seale’s statement was not reversible error.

IV

24
 No. 07-60732

Seale argues next that the district court erred in admitting the opinion of
the Government expert regarding the cause of the victims’ deaths. Dr. Steven
T. Hayne, a forensic pathologist, gave expert testimony that the deaths of Moore
and Dee were caused by fresh-water drowning. On appeal, Seale contends that
the district court abused its discretion in admitting this testimony over Seale’s
objection.
The admission or exclusion of expert testimony is reviewed under an abuse
of discretion standard. Moore v. Ashland Chem., Inc., 151 F.3d 269, 274 (5th Cir.
1998) (en banc).
Seale does not challenge Dr. Hayne’s qualifications to give an opinion on
the cause of the victims’ deaths. Rather Seale argues that Hayne’s testimony
should have been excluded under Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993), because Hayne did not base his opinions on scientific
evidence but instead relied solely on the testimony of Charles Edwards. This
argument is unavailing.
First, Hayne’s testimony makes clear that he did not solely rely on the
testimony of Charles Edwards. At trial, Hayne stated that he derived his
opinion in part from Edwards’ testimony but that he also relied on a number of
other sources in making his conclusion. These sources included Dr. Bratley’s
autopsy reports written in July 1964, video footage of the recovery of the body
taken in July 1964, interviews of divers conducting the recovery effort, FBI
reports, and photographs of physical evidence.
Second, the Court in Daubert makes it clear that experts are permitted
wide latitude in choosing what data they rely on in forming their opinions,
including those that are not based on first hand knowledge or observation. Id.
Moreover, Fed. R. Evid. 703 contemplates that an expert may base his opinion

25
 No. 07-60732

on facts or data presented at trial.10 Thus, Hayne’s incorporation of Edwards’
testimony into his analysis and opinion was not improper. See also Carter v.
Massey-Ferguson, 716 F.2d 344, 349–50 (5th Cir. 1983) (expert witness’s opinion
testimony based solely on plaintiff’s account of accident in testimony at trial was
properly admissible).
Furthermore, Seale was given every opportunity to challenge Hayne’s
opinion. Hayne’s ultimate conclusion regarding Dee and Moore’s deaths was
that they were consistent with freshwater drowning; however, he recognized
that the decayed condition in which the bodies were found and the lack of soft
tissue available for analyses precluded a definitive conclusion. Given the lapse
of time between the victims’ deaths and autopsies and Hayne’s testimony,
Hayne’s inability to provide a definitive conclusion provided Seale with ample
material for cross-examination. Indeed, the record reflects that counsel
conducted a vigorous cross-examination of Dr. Hayne. Additionally, the defense
was permitted to call its own expert to testify about the causes of death of Dee
and Moore. Finally, the judge instructed the jury on the proper weight it should
afford expert testimony. See also Daubert, 509 U.S. at 596 (“Vigorous cross-
examination, presentation of contrary evidence, and careful instruction on the
burden of proof are the traditional and appropriate means of attacking shaky but

10
FED. R. EVID. 703 states:

The facts or data in the particular case upon which an expert bases an
opinion or inference may be those perceived by or made known to the
expert at or before the hearing. If of a type reasonably relied upon by
experts in the particular field in forming opinions or inferences upon the
subject, the facts or data need not be admissible in evidence in order for
the opinion or inference to be admitted. Facts or data that are otherwise
inadmissible shall not be disclosed to the jury by the proponent of the
opinion or inference unless the court determines that their probative
value in assisting the jury to evaluate the expert's opinion substantially
outweighs their prejudicial effect.

(emphasis added).

26
 No. 07-60732

admissible evidence.”) (internal quotations and citations omitted). For these
reasons, we are satisfied the district court did not abuse its discretion in
admitting Hayne’s opinion testimony concerning the cause of death of Dee and
Moore.
V.
Seale argues next that the district court erred in refusing to allow his
counsel to call as a witness Edwards’ attorney Walter Beasely.
The testimony of Edwards, a participant in the disappearances of Dee and
Moore, was central to the Government’s case against Seale. Although Edwards
had denied having any knowledge of the crime for more than forty years, in 2006
the Government obtained a statement from Edwards stating that Seale had
admitted details of the murders to Edwards. The Government then entered into
a plea agreement with Edwards and he testified at Seale’s trial.
Following Edwards’ testimony at trial, Seale attempted to call Edwards’
attorney, Walter Beasley, to testify that Edwards had recanted the 2006
statement he gave to the FBI and thereby impeach Edwards’ testimony. After
a hearing, the district court refused to permit Beasley’s testimony on grounds
that it would violate the attorney-client privilege. Seale challenges that ruling,
arguing that Edwards waived his attorney-client privilege.
“The application of the attorney client privilege is a question of fact, to be
determined in light of the purpose of the privilege and guided by judicial
precedents.” United States v. Neal, 27 F.3d 1035, 1048 (5th Cir. 1994) (internal
quotation marks omitted). The clearly erroneous standard of review applies to
the district court’s factual findings and we review the district court’s evidentiary
rulings for an abuse of discretion. United States v. Campbell, 73 F.3d 44, 47 (5th
Cir. 1996) (citations omitted). We review the application of the controlling law
de novo. Id. at 46.

27
 No. 07-60732

Seale produced no evidence that would support a conclusion that Edwards
expressly waived the privilege. Seale also argues that Edwards implicitly
waived the privilege.
Resolving a claim of implied waiver of the attorney-client privilege
depends on the affirmative answers to two questions. United States v. Woodall,
438 F.2d 1317,1324 (5th Cir. 1970) (en banc). The first question is subjective:
does the person holding the right to claim the privilege intend to waive it? Id.
The second question is objective: is it fair and consistent with the assertion of the
claim or defense being made to allow the privilege to be invoked? Id.
In order to satisfactorily answer the first question, the evidence must
support a finding that Edwards, the holder of the privilege, intended to waive it.
Seale relies on the following facts from the record to support his implied waiver
claim. After Edwards gave his statement to the FBI stating Seale admitted
participation in the kidnaping and murders, Edwards allegedly told Beasley the
statement was false and Beasley allegedly reported this assertion to Seale’s
counsel. Beasley further allegedly told Seale’s counsel that Edwards asserted
that Edwards had no personal knowledge about Seale’s involvement in the
crime. Counsel for Seale then represented that at their request Beasley again
talked to Edwards about the whereabouts of a potential witness and co-
conspirator Curtis Dunn, and that Beasley called counsel back with the
requested information. Seale argues that when Edwards furnished this
information to Seale’s counsel this satisfies the first prong under Woodall:
Edwards knew that his attorneys were talking to Seale’s counsel and therefore
he intended to waive the privilege. In a hearing before the trial court, however,
Beasley flatly denied that Edwards ever gave Beasley permission to speak to
Seale’s counsel. He also denied that Edwards ever repudiated the statement he
gave to the FBI.

28
 No. 07-60732

The district court then told defense counsel that before it would permit
counsel to question Beasley, Edwards would have to be recalled about whether
he was waiving his attorney-client privilege. The defendant declined the court’s
invitation to recall Edwards. The court explained: “I have no testimony from
Edwards that he waived the attorney-client relationship. This witness here
[Beasley] says that he did not.”
Even if we assume that Edwards knew that his counsel Beasley was
talking to Seale’s counsel about Dunn’s whereabouts or other matters
peripherally related to the case, this fact is insufficient to establish that
Edwards intended to waive his privilege regarding confidential communication.
Edwards did not personally disclose any confidential information to Seale’s
attorney and this is usually the proof required to establish intent to waive the
privilege. See In Re Grand Jury Subpoena, 341 F.3d 331, 337 (4th Cir. 2003)
(citations omitted) (“As a general rule, implied waiver of [attorney-client
privilege] occurs when the party claiming the privilege has made any disclosure
of a confidential communication to any individual who is not embraced by the
privilege. Such a disclosure vitiates the confidentiality that constitutes the
essence of the attorney-client privilege.”) (emphasis added).
The district court did not err in finding that Edwards did not intend to
waive the privilege. It gave Seale the opportunity to establish this fact by
recalling Edwards, which Seale declined to do. We find no error in the trial
court’s exclusion of Beasley’s testimony.11

11
Even if Edwards had waived his attorney-client privilege, it is doubtful that Beasley’s
testimony was admissible to impeach Edwards. “It is well-settled that evidence of a prior
inconsistent statement is admissible to impeach a witness.” United States v. Devine, 934 F.2d
1325, 1344 (5th Cir. 1991). However, “[p]roof of such a statement may be elicited by extrinsic
evidence only if the witness on cross-examination denies having made the statement.” Id.; see
also FED. R. EVID. 613(b) (“Extrinsic evidence of a prior inconsistent statement by a witness
is not admissible unless the witness is afforded an opportunity to explain or deny the same and
the opposite party is afforded an opportunity to interrogate the witness thereon, or the
interests of justice otherwise require.”). The defendant in this case failed to elicit a prior

29
 No. 07-60732

VI.
A.
Seale argues next that the court erred in admitting six items of evidence
over his objection. Because Seale timely objected, we review the district court’s
evidentiary rulings for abuse of discretion. United States v. Guerrero, 169 F.3d
933, 943 (5th Cir. 1999).
The six items of evidence at issue are as follows:
1. Franklin Advocate newspaper article
The district court admitted an article published in a Franklin County
newspaper written by Seale. In this editorial, Seale condemns the Civil Rights
Bill, stating that the Bill “is nothing less than a giant step to communist
dictatorship.” The article also contains racially inflammatory content.
2. Testimony of Robert Middleton
Robert Middleton was a Southern Baptist minister at the church Seale
attended. At trial, he testified about contacts with Seale. In particular,
Middleton recounted conversations with Seale and another man in which they
threatened to kill “niggers.” He testified about another instance when Seale
arrived at his home with a shotgun and asked, “What do you think would
happen if I walked in a nigger juke joint and just started shooting all the way
around the room.” Middleton further testified that once Middleton had made
clear his opposition to his congregation’s outward hostility to the Federal
Government and African Americans, he was ostracized and feared that Seale
would harm him.
3. Testimony of Linda Ann Luallen

inconsistent statement from Edwards regarding recantation of his written statement and Seale
has not shown how the extrinsic evidence of Beasley’s statement could be admitted.

30
 No. 07-60732

Linda Luallen was Seale’s former daughter-in-law. She testified as to
Seale’s open racial hostility toward African-Americans and about Seale’s pride
in his membership in the KKK.
4. Testimony of Dan Irby
Irby, a friend of Seale’s son, testified about Seale’s statements declaring
his membership in the KKK. Irby also testified that Seale had told him that he
was a Constable in Franklin County, Mississippi, a position which gave Seale “a
license to kill” in Franklin County.
5. Journal of Reverend Clyde Briggs and
6. Testimony of Chastity Briggs-Middleton
Reverend Clyde Briggs’ journal was introduced to corroborate Edwards’
account of the events surrounding the kidnaping of Dee and Moore. According
to Edwards’ testimony, after Dee and Moore had been tied to a tree and beaten,
they told Seale and his co-conspirators that a gun cache had been hidden at the
Roxie Baptist Church. Edwards and others went to search the church for
weapons. Briggs was the minister at Roxie Baptist Church and was present that
night when Edwards and others arrived looking for the guns. Following
Edwards’ search of the Church, Briggs documented these events in his journal.
To further corroborate the authenticity and credibility of the journal,
Chastity Briggs-Middleton gave testimony regarding her own recollection of the
events described in the journal.
B.
Seale argues that none of the above evidence has any relevance to
kidnaping, the crime with which he was charged. Additionally, he contends that
whatever relevance the evidence has is substantially outweighed by its
prejudicial effect and that any evidence describing his acts should have been
excluded as a prior or subsequent “bad act.” Finally, Seale urges that all the
evidence, in aggregate, put him on trial not for the charged crimes but for all of

31
 No. 07-60732

the ills of racial oppression that existed throughout the South. The Government
maintains that the newspaper article and the testimony regarding Seale’s racial
animus were relevant because they were probative of Seale’s racial animus,
membership in the KKK and relationship to other members of the conspiracy.
With respect to Briggs’ journal, the Government argues, his account was
probative of the search for firearms at the Church–a key fact to establish the
sequence of events of the crime. Further, the additional pages from the journal
and Chastity Briggs-Middleton’s testimony were necessary to authenticate and
corroborate the journal’s entries.
The trial court is afforded wide discretion in assessing the relevance and
prejudicial effect of evidence. United States v. Brown, 547 F.2d 1264, 1266 (5th
Cir. 1977). Relevant evidence is admissible. FED. R. EVID. 402. Relevant
evidence “may be excluded if its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or misleading the jury, or
by considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.” FED. R. EVID. 403. Additionally, Rule 404(b) prohibits
evidence of other acts to prove the defendant later acted in conformity with the
earlier acts. FED R. EVID. 404(b). However, the rule permits other-acts evidence
“for other purposes, such as proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident . . . .” Id. This court
applies a two-step test in evaluating the admissibility of extrinsic act evidence:
(1) it must be relevant to an issue other than the defendant’s character and (2)
it must have probative value that is not substantially outweighed by its
prejudicial effect on the jury. See United States v. Beechum, 582 F.2d 898, 911
(5th Cir. 1978) (en banc) (citation omitted).
Edwards’ testimony makes it clear that Dee and Moore were abducted
because of the color of their skin by a band of men who shared membership in
a group hostile to African Americans and the Civil Rights movement. Therefore,

32
 No. 07-60732

evidence related to Seale’s racial animus and membership in the KKK, while
racially inflammatory, was relevant to show Seale’s motive and intent and to
identify Seale’s relationship with others in the conspiracy. See, e.g., United
States v. Black, 685 F.2d 132, 134 (5th Cir. 1982) (permitting the admission of
a Nazi flag into evidence despite its racially inflammatory nature when the flag
was relevant to show the identity of the group committing the conspiracy).
With respect to the admission of Reverend Briggs’ journal in which he
described the search of the Roxie Church, Seale argues that the journal in
general was irrelevant and that three pages in particular were unduly
prejudicial because they recounted instances of racial hostility unrelated to
Seale. The court did not abuse its discretion in admitting the journal. The
journal was admitted in its entirety so that the jury could evaluate the journal’s
authenticity and credibility by comparing the handwriting, writing style, and
content of those other entries to the ones being offered in connection with this
case. See Advisory Committee's Note to FED. RULE OF EVID. 901(B)(4) (“The
characteristics of the offered item itself, considered in the light of circumstances,
afford authentication techniques in great variety. Thus a document or telephone
conversation may be shown to have emanated from a particular person by virtue
of its disclosing knowledge of facts known particularly to him.”). Additionally,
the court did not abuse its discretion in admitting the testimony of Reverend
Briggs’ daughter, Chastity Middleton-Briggs; her testimony was relevant to
corroborate the incidents described in the journal.
Furthermore, for each piece of evidence at issue on appeal, the record
indicates there was a hearing where the relevance of the proffered evidence was
weighed against its possible prejudicial effect. Additionally, at Seale’s request,
the district court gave the jury a limiting instruction that Seale was “not on trial
for any act, conduct or offense not alleged in the indictment.” As to the unrelated
incidents of racial violence contained in the Journal, the district court provided

33
 No. 07-60732

a limiting instruction to the jury that “the Government does not allege that the
defendant here had anything whatsoever to do with those matters.” And again,
at the close of all the evidence, the court admonished the jury not to “make any
adverse inference whatsoever against the defendant relative to those matters.”
See United States v. Sanders, 343 F.3d 511, 518 (5th Cir. 2003) (“[W]hen the
court issues a limiting instruction, it minimizes the danger of undue prejudice.”)
Therefore, the district court did not abuse its discretion in admitting the
above evidence.
VII.
Finally, Seale argues that the evidence was insufficient to support the
verdict. At the close of all of the evidence at trial, Seale moved for a judgment of
acquittal under FED. R. CRIM. P. 29. The district court denied Seale’s motion.
In reviewing the sufficiency of the evidence, we view the evidence and all
inferences to be drawn from it in the light most favorable to the verdict to
determine if a rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt. United States v. Broussard, 80 F.3d 1025,
1030 (5th Cir. 1996). Our review of the sufficiency of the evidence is “highly
deferential to the verdict.” United States v. Harris, 293 F.3d 863, 869 (5th Cir.
2002). “The evidence need not exclude every reasonable hypothesis of innocence
or be wholly inconsistent with every conclusion except that of guilt, and the jury
is free to choose among reasonable constructions of the evidence.” United States
v. Bermea, 30 F.3d 1539, 1551 (5th Cir. 1994).
In support of his argument that the evidence to convict him was
insufficient, Seale contends that Edwards’ testimony, essential to the
Government’s case against Seale, was not credible. He maintains that Edwards’
claim of firsthand knowledge that Seale was connected to the kidnaping and
deaths of Dee and Moore is not to be believed. Seale also argues Edwards’

34
 No. 07-60732

testimony that Seale crossed state lines, an element of the crime for which Seale
was indicted and convicted, was also incredible.
“It is the sole province of the jury, and not within the power of this Court,
to weigh conflicting evidence and evaluate the credibility of witnesses.” United
States v. Ivey, 949 F.2d 759, 767 (5th Cir. 1991).12 Seale argues that Edwards
lacked credibility because, until Edwards agreed to testify for the Government,
Edwards persistently denied having any knowledge of the events surrounding
the murders of Dee and Moore. Yet the trial judge gave Seale’s attorneys every
opportunity to cross-examine Edwards. The record reflects that on cross-
examination, counsel for Seale elicited all the facts and circumstances
surrounding Edwards’ receipt of immunity and a detailed account of Edwards’
previous inconsistent statements about the crime. It was within the jury’s
province to balance Edwards’ testimony elicited on direct examination with
Edwards’ earlier inconsistent statements along with his grant of immunity and
to determine the extent to which it would accept his testimony.13
Testimony is incredible as a matter of law only if it relates to facts that the
witness could not have possibly observed or to events which could not have
occurred under the laws of nature. United States v. Bermea, 30 F.3d at 1552.
According to his testimony, Edwards aided Seale in abducting and beating Dee
and Moore. Before he left Dee and Moore, Edwards testified that Seale’s father
told him that Dee and Moore “would be took care of” which Edwards understood

12
See also United States v. Cantu, 876 F.2d 1134, 1137 (5th Cir. 1989) (explaining that
a witness’ credibility, like the testimony of any witness, is subject to the crucible of cross-
examination and is within the exclusive province of the jury); United States v. Bermea, 30 F.3d
1539, 1552 (5th Cir. 1994) (“We have repeatedly stated that the jury is the final arbiter of the
credibility of witnesses.”) (citations omitted).

13
See also United States v. Bermea, 30 F.3d at 1552 (“Although the credibility of
witnesses who receive consideration in exchange for their cooperation or testimony may suffer
from that fact, we have concluded that it is up to the jury to evaluate the credibility of a
compensated witness.”) (citations and internal quotations omitted).

35
 No. 07-60732

as meaning that Dee and Moore would be killed. Finally, Edwards recounted
how after the killings had taken place, Seale related to him both the place and
the manner in which Dee and Moore were killed. Because he personally
observed the events about which he testified, Edwards’ testimony is not
incredible as a matter of law.
As discussed above, Edwards’ testimony about Seale’s role in the
kidnaping of Dee and Moore–the manner in which the men were taken, the route
by which they were brought to their deaths–is corroborated by other evidence
presented at trial. When we view all the evidence in the light most favorable to
the verdict, a reasonable jury could easily conclude that Seale conspired to
unlawfully kidnap Henry Dee and Charles Moore, and transport Dee and Moore
in interstate commerce for the purposes of interrogation and assault.
Accordingly, we reject Seale’s invitation to overturn the jury’s verdict on
sufficiency of evidence grounds.
VIII
For these reasons, we affirm Seale’s conviction.
AFFIRMED.

36
 No. 07-60732

DeMOSS, Circuit Judge, concurring in part and dissenting in part:
I am in substantial agreement with the panel majority’s resolution of most
issues raised on appeal by James Ford Seale. However, I believe that the statute
of limitations ran long before Seale was indicted in 2007. I also believe that the
district court’s admission of Seale’s inculpatory statement to FBI agents, which
was elicited in police custody without a Miranda warning, was reversible error.
On these two points, I dissent.
I.
I first wish to reiterate my view that this prosecution is barred by the
statute of limitations for the reasons stated in the first, unanimous opinion of
this panel. See United States v. Seale, 542 F.3d 1033 (5th Cir. 2008). The
panel’s decision was vacated by a 9–8 vote to take the case en banc. 550 F.3d
377 (5th Cir. 2008). On en banc consideration, the court divided equally, 9–9,
resulting in the summary affirmance of the district court. 570 F.3d 650 (5th Cir.
2009). Unfortunately, there is no final word regarding how courts are to
determine the limitations period applicable to pre-1968 kidnapings. Confusion
will continue to reign on whether changes to penalties retroactively affect
limitations periods and how the federal saving clause affects statutes of
limitations. The rigamarole of litigation in the district court, a three-judge panel
of this court, an eighteen-judge en banc court, and a question certified by a 12–6
vote to the United States Supreme Court has produced ample heat but shed
little light on these important legal issues. United States v. Seale, 577 F.3d 566
(5th Cir.) (certifying limitations question pursuant to 28 U.S.C. § 1254(2) and
Supreme Court Rule 19), question dismissed, 130 S. Ct. 12 (2009); see also 130
S. Ct. at 12 (statement of Stevens, J., joined by Scalia, J.) (“This certificate
presents us with a pure question of law that may well determine the outcome of
a number of cases of ugly racial violence remaining from the 1960s.”). Clarity
in this area is still much-needed.

37
 No. 07-60732

II.
Seale’s conviction cannot stand because the district court committed
reversible error in admitting the statement Seale made to FBI agents on
November 6, 1964.
A.
In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court held that
statements made by the accused in custodial interrogation are inadmissible
against the accused unless he is first informed of his right to remain silent, his
right to counsel, his right to have counsel appointed, and that any statement
made to law enforcement can be used against him. Id. at 444. The Court
emphasized that this rule arose from the need to protect an individual’s Fifth
Amendment right against compelled self-incrimination via a robust application
of the exclusionary rule. Id. at 457. This applies whether or not the individual
knew of such right. See id. at 468 (“The Fifth Amendment privilege is so
fundamental to our system of constitutional rule and the expedient of giving an
adequate warning as to the availability of the privilege so simple, we will not
pause to inquire in individual cases whether the defendant was aware of his
rights without a warning being given.”).
Miranda itself did not address whether its rule applied retroactively or
prospectively only. However, one week after its decision in Miranda, the Court
issued Johnson v. New Jersey, 384 U.S. 719 (1966). The petitioners in Johnson
v. New Jersey were tried and convicted based on confessions elicited without
Miranda warnings, and the convictions became final before Miranda was
decided. Id. at 725-26. In unambiguous terms, the Court held that “Miranda
applies only to cases in which the trial began after the date of our decision one
week ago.” Id. at 721. The rule did not apply “retroactively,” that is, to
convictions which were already final, nor did it apply to cases tried before
Miranda’s effective date. Id. at 731-32. However, even for statements elicited

38
 No. 07-60732

pre-Miranda, the rule would henceforth apply “to persons whose trials had not
begun as of June 13, 1966.” Id. at 734; see also Frazier v. Cupp, 394 U.S. 731,
738 (1969) (holding, on collateral review, that Miranda rule did not apply to
confession because petitioner was tried before Miranda decision). Since Johnson
v. New Jersey and Frazier, no Supreme Court decision has applied or revisited
this rule.
Prior to Miranda, fewer safeguards existed to protect the rights of
arrestees. In Haynes v. Washington, 373 U.S. 503 (1963), the Court invalidated
a conviction because “the petitioner’s written confession was obtained in an
atmosphere of substantial coercion and inducement created by statements and
actions of state authorities.” Id. at 513. The petitioner had been held
incommunicado, his requests to see a lawyer and to speak to his wife were
denied, and the police refused to present the petitioner to a magistrate unless
he signed a written confession. Id. at 509-11. The Court held that “under a
totality of circumstances” the facts “evidenc[ed] an involuntary admission of
guilt” which deprived the petitioner of his right to due process under the
Fourteenth Amendment. Id. at 513-14. The due process/voluntariness standard
is fact-dependent. See id. The Court reasoned that “the fact that a defendant
is not reminded that he is under arrest, that he is not cautioned that he may
remain silent, that he is not warned that his answers may be used against him,
or that he is not advised that he is entitled to counsel” were all relevant to the
question of voluntariness; however, such facts were not necessarily
determinative. Id. at 516-17. It was not until Miranda that warnings of this
nature became a mandatory feature of custodial interrogation.
Miranda marked a watershed moment concerning the rights of the
accused. In Dickerson v. United States, 530 U.S. 428 (2000), the Court made
pellucid that the Miranda warning is not mere prophylaxis for the Fifth
Amendment right against self-incrimination. The warning had become “part of

39
 No. 07-60732

our national culture,” and comprised a constitutional right in and of itself. Id.
at 443-44.1 However, the Miranda rule, rooted in the Fifth Amendment’s
guarantee against compelled self-incrimination, did not supplant the Court’s
previously articulated due process/voluntariness standard. See id. at 434 (“We
have never abandoned this due process jurisprudence, and thus continue to
exclude confessions that were obtained involuntarily.”). It is possible that self-
incriminating statements elicited in conformance with Miranda may be deemed
inadmissible because they were compelled. See id. at 444 (citing Berkemer v.
McCarty, 468 U.S. 420, 433 n.20 (1984)).
B.
In 2007, more than four decades after Miranda and Johnson v. New Jersey
were rendered, the government indicted James Ford Seale on one count of
conspiracy to kidnap and two counts of kidnaping Henry Dee and Charles Moore.
See 18 U.S.C. § 1201. According to a motion to suppress filed by Seale on March
22, 2007, the government “produced in discovery an FBI report alleging that
defendant Seale made an inculpatory statement during the time he was in
custody.”2 Seale had been arrested on a Mississippi magistrate’s warrant in
conjunction with his suspected role in the murders of Dee and Moore by the
Mississippi Highway State Police (“MHSP”) in the early morning hours of
November 6, 1964.3 The FBI report, which was dictated and memorialized by

1
In Dickerson, the Court considered whether 18 U.S.C. § 3501 legislatively overruled
Miranda. Congress enacted § 3501 after Miranda to make voluntariness the controlling
standard for the admissibility of confessions. “The Court reasoned that, because Miranda was
constitutionally based, Miranda’s requirements could not be avoided by statutorily allowing
the admission of unwarned statements.” United States v. Guanespen-Portillo, 514 F.3d 393,
400 (5th Cir. 2008) (citing Dickerson, 530 U.S. at 444).
2
From the time of indictment to the present, the Federal Public Defender for the
Southern District of Mississippi has been Seale’s appointed counsel.
3
The murder charges against Seale under state law were later dismissed, ostensibly
for lack of evidence.

40
 No. 07-60732

Special Agent Edward Putz on November 6, 1964, the day of Seale’s arrest, reads
as follows (the names of the arresting MHSP officers were redacted):
At 5:10 a.m. on November 6, 1964, JAMES FORD SEALE was
apprehended on the charge of murder by [redacted]. Special Agents
EDWARD JOHN PUTZ and LENARD A. WOLF were present at the
apprehension.
Special Agents PUTZ and WOLF accompanied [redacted] in
transporting JAMES FORD SEALE to Jackson, Mississippi.
En route to Jackson, JAMES SEALE answered general questions
not pertaining to the murders. He remained mute at direct
questions that were asked him about the murders with the following
exception which is set out here verbatim:
SA WOLF: We know that on Saturday afternoon May 2, 1964, you
picked up in your car HENRY DEE and CHARLES MOORE,
two Negro boys from Roxie. You and CHARLES EDWARDS
and others took them to some remote place and beat them to
death. You then transported and disposed of their bodies by
dropping them in the Mississippi River. You didn’t even give
them a decent burial. We know you did it, you know you did
it, the Lord above knows you did it.
JAMES SEALE: Yes, but I’m not going to admit it; you are going to
have to prove it.
When questioned further regarding this remark he said “I’m not
going to say anything more”.
[Redacted] all heard the above conversation. SA PUTZ noted that
the time that SEALE made the above statement was at 5:40 a.m.
Seale asserted in the motion to suppress in 2007 that, “[a]t the time the
statement was made, Defendant had not been properly advised of his right to
remain silent and his right to have an attorney appointed to represent him.”
Seale also argued that he “was subjected to physical abuse by the officers and
agents questioning him,” and that the FBI agent questioning him used the
psychologically coercive “Christian Burial Speech.” See Brewer v. Williams, 430
U.S. 387 (1977). Seale filed a separate memorandum of points and authorities,
which stated in part: “At the time the statement was made, the United States

41
 No. 07-60732

Supreme Court had not yet issued their famous opinion in the case of Miranda
. . . .” The memorandum did not cite Johnson v. New Jersey, but rather, argued
that Seale’s statement was inadmissible under the voluntariness standard of
Haynes v. Washington.
The government responded to Seale’s motion on April 16, 2007. It also
argued that the voluntariness standard of Haynes v. Washington applied.
However, the government specifically averred that the Miranda rule did not
apply, and for the first time, cited Johnson v. New Jersey. I feel it necessary to
draw attention to the following passage from the government’s response:
Defendant appears to recognize that Miranda v. Arizona, 384 U.S.
436 (1966), was not decided until two years after Seale made the
admission in this case, and that the procedural safeguards afforded
by that decision are therefore not applicable here. Johnson v. New
Jersey, 384 U.S. 719, 732 (1966) (holding Miranda decision does not
apply retroactively); Frazier v. Cupp, 394 U.S. 731, 738 (1969)
(same). Although the defendant does not suggest that Miranda
applies in this case, he inaccurately asserts that a Supreme Court
decision three years prior to Miranda imposed a requirement that
“defendants must be properly advised of their right to remain
silent.” Defendant’s Motion to Suppress at 2. In fact, that prior
decision, which governs the admissibility of Seale’s 1964 statement,
requires a reviewing court to examine the totality of the
circumstances concerning the interrogation when determining
whether a defendant’s statement is “voluntary.” See Haynes v.
Washington, 373 U.S. 503, 514 (1963).
Thus, the government first cited Johnson v. New Jersey, and affirmatively stated
that Seale was not entitled to the protections and benefits of the Miranda
decision, notwithstanding the fact that trial would begin over forty years after
Miranda became applicable to all trials.
The district court conducted a hearing on the motion to suppress, as well
as on other pre-trial motions, from April 30 to May 2, 2007. Agent Putz, who
was long-since retired, testified that the FBI memorandum accurately recounted
the events of November 6, 1964. Putz stated that Seale never requested counsel,

42
 No. 07-60732

but also made no further admissions. Putz testified that he never heard the
arresting MHSP officers advise Seale that his statements could be used against
him, nor that he had the right to an attorney and the right to remain silent. The
government offered no testimony that Miranda warnings were given to Seale.
At the suppression hearing, Seale’s counsel, the government, and the court
all operated under the misguided assumption that Miranda did not apply to
Seale’s custodial confession. On April 30, Seale’s counsel argued that under
Haynes, the FBI agents were obligated to inform Seale of his right to counsel, his
right to remain silent, and that his statements could be used against him.
Seale’s counsel did not discuss Johnson v. New Jersey. In response, the
government stated:
Despite counsel’s protestations to the contrary, Miranda was not the
law. The decision was not made until 1966. Indeed, the Supreme
Court of the United States said in [Johnson v. New Jersey] and also
in [Frazier v. Cupp] that Miranda does not apply retroactively.
Miranda represented a demarcation. From Miranda forward there
was a requirement to warn the defendant, as counsel has suggested
that Mr. Seale was entitled to here.
Thus, for a second time, the government made an incorrect statement of law
concerning the applicability of Miranda and the holding of Johnson v. New
Jersey. The government’s comments constituted the only references to Johnson
v. New Jersey and the only arguments whether the protections of Miranda
applied to Seale’s trial. Two days after hearing evidence and argument
concerning the motion to suppress Seale’s statement, the district court issued an
oral ruling on May 2. The court reasoned that neither Haynes nor Brewer was
apposite. The court did not discuss whether it considered Miranda applicable,
nor did it mention Johnson v. New Jersey and its bearing upon the Miranda
decision. The court denied Seale’s motion to suppress.
C.

43
 No. 07-60732

Seale’s confession was one of two pieces of evidence which placed him at
the scene of the murders. The other statement came from Charles Edwards, a
co-conspirator in the abduction of Dee and Moore. Edwards took part in
abducting the two young men on May 2, 1964, taking them to Homochitto
National Forest, beating them, and demanding to know where guns were being
stored in anticipation of what the KKK supposed was a Black Panther-inspired
insurrection. Once Dee and Moore stated that guns were being hidden in the
baptistry of the Roxie Baptist Church, Edwards departed the scene in order to
notify law enforcement and search the church. He testified that he left Seale
and other KKK members with Dee and Moore, who were alive at the time.
Edwards did not witness what occurred next. He stated that some four to six
weeks later, he was present when James Seale described to other members of
the KKK what transpired after Edwards left. Seale did not speak to Edwards
directly; Edwards was present and overheard the details. According to Edwards,
Seale revealed that he took Dee and Moore first to the farm of Clyde Seale (the
defendant’s father), and from there to Natchez, Mississippi, across the
Mississippi River into Louisiana, and then a short distance north to Parker’s
Landing, which is in Mississippi. Dee and Moore were weighted down and cast
alive by James Seale and others into the Old Mississippi River (a former arm of
the river which forms the Mississippi–Louisiana border).
Edwards’s statements were based entirely on forty-year-old hearsay. He
could not recall precisely when, where or under what circumstances Seale
disclosed the details of the transportation and deaths of Dee and Moore.
Unsurprisingly, Edwards never wrote down the details of Seale’s statement, and
never revealed the details to another person before being compelled to testify.
In fact, Edwards said he had lied about the facts or covered them up for over
forty years: he lied to state and federal law enforcement agents in the 1960’s; he

44
 No. 07-60732

asserted his Fifth Amendment privilege before the House Un-American
Activities Committee in 1966; he lied to a film crew from the news program 20-
20 in 1999; and he lied to the victims’ families. Edwards acknowledged that he
continued to lie to federal officials investigating the present case. Even after he
was granted immunity, stripped of his Fifth Amendment privilege, and
compelled to testify, Edwards insisted that he knew nothing about what
happened to Dee and Moore after he left them in the forest. He was
administered a polygraph examination and was informed that he had failed the
portion of the examination pertaining to what happened after he left the forest.
Edwards testified that the government threatened to question his family and
charge him with perjury. At this point, for the first time in over forty years,
Edwards divulged what he remembered about Seale’s inculpatory statements
about killing Dee and Moore.
Seale’s confession, though far more succinct than Edwards’s testimony,
played a very prominent role in securing his conviction. On the sixth day of
trial, June 12, 2007, the government called FBI Special Agent Putz as its final
witness and elicited the facts and circumstances of the confession. The
government then relied heavily upon it during the rebuttal portion of its closing
argument. In fact, Seale’s one-sentence confession was the fulcrum of the
government’s final words to the jury in this case. At the outset of rebuttal, the
prosecutor stated4:
Ladies and gentlemen, let me tell you about one man’s words: ‘Yes.
But I’m not going to admit it. You’re going to have to prove it.’
Those are the words of a guilty man. Defiant, arrogant, and
unrepentant. Cocksure and confident that he would never be seated
in a courtroom like he is here today. Confident that the crime that
he committed was never going to be discovered. And he was

4
The following passages are found in Volume 11 of the trial transcripts.

45
 No. 07-60732

confident, ladies and gentlemen, and he was defiant and he was
cocksure because he was able to pick the participants in this
conspiracy, because he was able to pick the members that he
committed this crime with, because the people that he committed
this crime with were his fellow Klansmen, his father, his brother,
his life-long family friend. And he was confident that none of them
were ever going to come in and tell ladies and gentlemen of a jury
like yourselves what he had done.
And he knew something else too back when he made that statement
to the FBI in 1964. He knew that local law enforcement, at least
some members of it, in Franklin County, Mississippi, were a help to
this conspiracy, not a hindrance.
Thus, the jury was urged to regard Seale’s custodial confession as the most
telling statement any person made at or around the time of the kidnap-murders.
The prosecutor then discussed other relevant evidence, mainly the
testimony of Charles Edwards. Returning to the confession, the prosecutor
implied that it was given without coercion or physical intimidation:
But now I want to go back to the beginning, because there is still
one other very important corroboration for the testimony of Charles
Edwards: ‘Yes, but I’m not going to admit it. You’re going to have
to prove it.’ The uncontroverted testimony from Agent Putz is that
this is the testimony – that was the statement made by this
defendant to two FBI agents back in 1964, a statement made
approximately 30 minutes after he was arrested, while he was in
the backseat with those two agents.
You saw Agent Putz on the stand. You had an opportunity to
evaluate his credibility. You ask yourself whether or not that struck
you as an agent who beat a confession out of this man.
A few minutes later, the prosecutor again beseeched the jury to convict
Seale on the weight of the confession:
I submit to you also that the very defiant, arrogant, confrontational
statement that the defendant made undercuts any argument as to
its voluntariness or to its credibility.

46
 No. 07-60732

And make no mistake, ladies and gentlemen, this was a confession.
Agent Putz was there. He told you the defendant’s demeanor. He
told you what happened in that car. He knows a confession when he
hears one. . . . [Seale] was basically confronted with the fact that he
had committed this murder, and his statement in response was
“yes.”
....
This man issued a challenge 43 years ago, back when he was a
young man, back when he was confident that nothing was going to
happen to him for his participation in this crime. He thought that
his secret was safe and that the silence was going to be permanent.
But we have finally taken up that challenge here in court during the
last two weeks.
Shortly thereafter, the prosecutor concluded rebuttal. The jury found Seale
guilty on all counts.
D.
In the opening brief in this court, Seale’s counsel stated: “The alleged
confession occurred before the Supreme Court decided Miranda. This Court
must therefore rely on pre-Miranda case law to determine the applicable test for
a claim of involuntary confession.” Seale’s brief did not cite Johnson v. New
Jersey. In its response brief, the government admitted for the first time that
Miranda should have applied to Seale’s trial. The government then asserted
that because Seale’s counsel “affirmatively argued to the district court, and
continues to argue on appeal, that the admissibility of his 1964 statement is
governed by pre-Miranda standards of voluntariness, the issue of whether his
statement should have been excluded under Miranda is waived.” In his reply
brief, Seale argued that he adequately raised the issue whether the statement
should be suppressed, and that a collective mistake on the part of the
prosecution, defense, and district court should not deprive Seale of the benefit
of the proper legal standard.

47
 No. 07-60732

III.
In my view, Seale has preserved the argument that the lack of Miranda
warnings rendered his confession inadmissible. Alternatively, if review is for
plain error, I believe such is present. In either case, I would reverse.
A.
The panel majority first acknowledges that the facts in this case are
“egregious.” I agree, but I part ways where the panel majority lays all
responsibility at Seale’s feet for his counsel’s errors. The majority considers this
an instance “where an appellant affirmatively misleads the court regarding the
legal standard that controls the objection.” There are two problems with this
statement. The first is legal. Miranda did not overrule or supplant the
voluntariness test. Miranda is grounded in the Fifth Amendment’s guarantee
against compelled self-incrimination. The Miranda rule supplements, or
subsumes in part, the voluntariness inquiry, which has its roots in due process.
An un-Mirandized statement may be voluntary; conversely, an involuntary,
coerced statement may follow a scrupulous recitation of the Miranda warnings.
See Dickerson, 530 U.S. at 444. Thus, the panel majority mistakenly treats pre-
and post-Miranda paradigms as mutually exclusive.
Secondly, I do not think it proper to blame only Seale for the error. Seale’s
counsel noted in the motion to suppress that, prior to giving the statement, Seale
“had not been properly advised of his right to remain silent and his right to have
an attorney appointed to represent him.” However, the government stated in
opposition that, under Johnson v. New Jersey, the “Miranda decision does not
apply retroactively.”5 The government continued to unqualifiedly and

5
The government was, at best, half-right. Johnson v. New Jersey indicated that
Miranda did not apply “retroactively” to convictions which had become final, nor to cases on
direct appeal, as of June 13, 1966. 384 U.S. at 730-34; see also Frazier, 394 U.S. at 738 (same).

48
 No. 07-60732

vociferously urge this incorrect position until after Seale filed his opening brief
in this Court. Had the government, Seale’s counsel, or the court read Johnson
v. New Jersey, the falsity of the government’s statements would have been
immediately apparent. There was ample time to peruse Johnson v. New Jersey
after the government cited the decision in its response to Seale’s motion. The
government cited Johnson v. New Jersey again during oral argument for the
motion to suppress, and the district court did not rule on the motion for two more
days. I consider this deficient lawyering, for which Seale’s counsel is primarily
responsible. However, the district court had to accept the government’s
representations at face value in order to deny the motion to suppress. The panel
majority ignores the government’s role in misleading the court and only
concludes that “Seale’s affirmative misrepresentation of the correct standard did
more than fail to alert the court to the proper standard, it affirmatively led the
court into error.” Respectfully, I submit that this assertion by the panel majority
distorts critical facts.
B.
Whether a district court grants or denies a motion to exclude or suppress
evidence, we review factual findings for clear error and conclusions of law de
novo. United States v. Pope, 467 F.3d 912, 915-16 (5th Cir. 2006) (citations
omitted). To preserve error, Federal Rule of Evidence 103(a)(1) requires that a
litigant first file a motion which states “the specific ground of objection, if the
specific ground was not apparent from the context.” To be reviewable, the error
must affect a substantial right of the party. Id. “Nothing in this rule precludes

However, even a cursory review of Johnson v. New Jersey permits but one reading: the
Miranda rule would apply “to persons whose trials had not begun as of June 13, 1966.” 384
U.S. at 734.

49
 No. 07-60732

taking notice of plain errors affecting substantial rights although they were not
brought to the attention of the court.” FED. R. EVID. 103(d).
“In determining the sufficiency of objections we apply ‘the general
principle that an objection which is ample and timely to bring the alleged . . .
error to the attention of the trial court and enable it to take appropriate
corrective action is sufficient to . . . preserve the claim for review.’” United States
v. Williams, 985 F.2d 749, 755 (5th Cir. 1993) (ellipses in original) (quoting
Osborne v. Ohio, 495 U.S. 103, 125 (1990)); see also Douglas v. Alabama, 380
U.S. 415, 422 (1965). If an argument is not raised in a motion to suppress, it is
deemed forfeited, and we review for plain error. See United States v. Baker, 538
F.3d 324, 329 (5th Cir. 2008).6 However, where good cause is shown, the “court
may grant relief from the waiver.” FED. R. CRIM. P. 12(e); cf. United States v.
Hall, 565 F.2d 917, 920 (5th Cir. 1978) (holding that “district court’s desire to
avoid penalizing a criminal defendant for the inadvertence of his attorney
constitutes ‘cause’”).
Seale never affirmatively argued that Miranda applied to his case.
However, he asserted that he had not been advised of his right to remain silent
or have counsel appointed. These factual allegations should have suggested to
the court that the absence of prophylactic warnings in conformance with
Miranda was relevant to this case. In Douglas, trial counsel objected that the
reading of a confession by the defendant’s confederate was “not subject to cross-
examination.” 380 U.S. at 421 n.4. The Court held that this sufficed to preserve
a Confrontation Clause challenge. Id. at 423. Counsel need not provide crafted

6
There is conflicting authority from other circuits concerning whether arguments not
raised are truly “waived”—and are thus unreviewable—or merely “forfeited,” and therefore
subject to plain-error review. See id. at 328-29 & nn. 1-6. Our practice has been to treat such
arguments as forfeited, and thus to review for plain error. See id. at 329.

50
 No. 07-60732

legal arguments, but rather, must notify the court of the nature of the objections.
See United States v. Harrelson, 705 F.2d 733, 738 (5th Cir. 1983) (“Hearings on
motions to suppress are . . . designed for the presentation of evidence in support
of factual allegations which, if proven, would justify the relief sought.”); United
States v. Renteria, 625 F.2d 1279, 1283 (5th Cir. 1980) (“Involuntary confessions,
about which the court is alerted, should not be admitted in evidence merely
because of defense counsel’s oversight or incompetence.”). I believe that Seale’s
motion to suppress adequately stated the factual basis of a Miranda objection.
Our appellate review should not be for plain error, but rather, whether the error
was harmless beyond a reasonable doubt. See United States v. Joseph, 333 F.3d
587, 592 (5th Cir. 2003).7
This case differs significantly from those cited in the panel majority’s
opinion. United States v. Mejia, 844 F.2d 209 (5th Cir. 1988), involved counsel’s
failure to articulate a specific hearsay exception at trial; we held that the
appellant could not argue the exception on appeal. Id. at 214-15. Alternatively,
we held that the error, if any, was harmless. Id. at 215. Notably, Mejia did not
involve an error of constitutional gravity or a misunderstanding of law
perpetuated by the government.8 Unlike the trial court in Mejia, the district
court considering Seale’s motion to suppress had ample time to investigate the
authorities cited by the parties, including Johnson v. New Jersey, which the
government relied on for the non-applicability of Miranda. The panel majority

7
Even if the objection was inadequate, the government’s failure to recant its
misstatement of law until this appeal makes it suitable to notice the error in this tribunal. Cf.
United States v. Cathey, 591 F.2d 268, 271 n.1 (5th Cir. 1979) (finding good cause for delay in
motion to dismiss indictment where basis for motion was not knowable until mid-trial).
8
The panel majority also cites United States v. Sims, 617 F.2d 1371, 1377 (9th Cir.
1980), which, like Mejia, involves hearsay exceptions which were never argued in the trial
court.

51
 No. 07-60732

also points to United States v. O’Brien, 435 F.3d 36, 38-39 (1st Cir. 2006), where
counsel failed to object on the basis of Doyle v. Ohio, 426 U.S. 610 (1976), after
the prosecutor wrongly made comments about the defendant’s silence. Counsel
objected on an incorrect basis, and a Doyle-based “objection was not obvious from
context,” which led the court to review for plain error only. 435 F.3d at 39.
Ironically, the court reasoned that while any lawyer worth his salt would know
of the Miranda rule, “many lawyers have never heard of Doyle.” Id. Like Mejia
and unlike the present case, O’Brien involves a ruling made on the spot during
trial, and nothing suggests that affirmative misstatements of the law by the
government precipitated the court’s error. In sum, the present case is entirely
different from the authorities marshaled by the panel majority.
Specificity in objections is desirable, but when it comes to basic
constitutional guarantees, courts must hesitate before exalting form over
substance. I have found no case, and the panel majority cites none, where the
court holds a defendant entirely accountable for an error caused by a confluence
of the government’s misstatements and defense counsel’s inadvertence.
Following the government’s citation of Johnson v. New Jersey for the unqualified
but erroneous position that Miranda had no application to Seale’s trial
whatsoever, it appears that nobody looked into the issue. The judge was not
asked to rule on the motion in the midst of trial, and two days separated the
testimony of Special Agent Putz, and arguments by counsel, from the court’s
denial of Seale’s motion. Error was predicated not by a dearth of factual
averments, nor by evidence insufficient to show that Seale did not receive
Miranda warnings (clearly, the evidence showed that he did not). Error was
grounded in a pure misunderstanding of law, which is reviewed de novo. See
Pope, 467 F.3d at 915-16.

52
 No. 07-60732

If error was preserved, there is no question but that Seale’s custodial
confession was improperly admitted. See Miranda, 384 U.S. at 444. The
government has not shown that the error was harmless beyond a reasonable
doubt. See Arizona v. Fulminante, 499 U.S. 279, 310 (1991); Joseph, 333 F.3d
at 592. Without the confession, the jury would have had to rely on the testimony
of Charles Edwards. Edwards admitted that he had lied about the details of the
crime for over forty years. He continued to deny knowledge concerning the
deaths of Dee and Moore after he was immunized and compelled to testify at
trial. Edwards stated that he personally took part in inveigling Dee and Moore,
and beating them to find out where weapons were stored. However, Edwards’s
first-hand knowledge ceased there. Everything from that point forward came
from a statement that Seale made some time after the acts alleged. Edwards
only revealed the details of this statement when the government threatened to
question his family and charge him with perjury. On the whole, Edwards’s
testimony presented the jury with a narrative that was rife with inconsistencies,
gaps, and credibility problems. Without Seale’s confession, only circumstantial
evidence supported Edwards’s version of the events. No physical or forensic
evidence connected Seale to the killings.
The government emphasized Seale’s confession repeatedly during its
closing argument as the boastful challenge of a “defiant, arrogant, and
unrepentant” murderer. It is almost certain that this confession affected the
jury’s deliberations and the outcome of proceedings. See Sullivan v. Louisiana,
508 U.S. 275, 279 (1993) (“The inquiry, in other words, is not whether, in a trial
that occurred without the error, a guilty verdict would surely have been
rendered, but whether the guilty verdict actually rendered in this trial was
surely unattributable to the error.”) (emphasis in original). We cannot know

53
 No. 07-60732

whether the jury considered Seale’s confession relevant, or mere surplusage in
light of other evidence. I would reverse.
C.
Even if plain error is the appropriate standard, see United States v. Olano,
507 U.S. 725, 733-34 (1993), I believe such is present. The burden is on Seale to
meet the standard. Id. at 734-35. As the panel majority acknowledges, Seale
easily meets the first two elements: “error” that is “plain” or “obvious.” Id. at
734. The district court committed error by allowing Seale’s confession to be
admitted after Miranda became applicable to all trials. The error was obvious
in light of Johnson v. New Jersey. The panel majority waffles on the third prong,
whether the error affected Seale’s substantial rights. See id. at 735. I believe
that the erroneous admission of the confession was highly prejudicial. There is
no doubt in my mind that the confession, which the government relied on heavily
during closing arguments, “affected the outcome of the district court
proceedings.” See id. at 734. And unlike the panel majority, I believe that the
court should exercise its discretion to correct the error because it “seriously
affect[s] the fairness, integrity or public reputation of judicial proceedings.” See
id. at 736 (alterations in original; quotation omitted).
I first point out that our Court has previously examined plain error in this
context. In Garay v. United States, 399 F.2d 696 (5th Cir. 1968) (per curiam),
defendant-appellant Garay was interrogated before Miranda was decided, and
thus was not given Miranda warnings. Id. at 696.
Appellant was implicated originally by co-defendant and
government witness Villareal. Appellant and Villareal had just
been on a trip to Mexico together. Villareal was found in possession
of narcotics, and told government officers he was carrying them as
agent of appellant and was to deliver them to appellant in Texas.
No delivery was shown. Villareal’s statements were used to elicit
admissions from appellant. Then at the trial Villareal recanted his

54
 No. 07-60732

statements implicating appellant and testified that he was
attempting, in desperation and confusion, to shift blame from
himself to appellant.
Id. We reasoned that Garay’s improperly obtained confession was of “great
importance in the totality of evidence.” Id. Trial was held a few weeks after
Miranda was issued; consequently, we held that admission of the statement into
evidence was “plain error affecting substantial rights,” notwithstanding trial
counsel’s failure to object. Id. We therefore vacated the conviction. Id. The
panel majority has failed to cite, much less distinguish Garay.
The panel majority has assumed, but not decided, that the admission of
Seale’s confession was prejudicial. The confession was one of two pieces of
evidence connecting Seale to the murders. Without it, the jury would have had
to rely solely on forty-year-old hearsay from Charles Edwards, a co-conspirator
and fellow Klan member who admittedly lied about the crime for most of his life.
Edwards continued to change his story even after the government granted him
immunity and compelled him to testify. Thus, the evidence of Seale’s role in the
death of Dee and Moore can hardly be considered overwhelming or
uncontroverted. The confession was “of great importance in the totality of
evidence;” its admission was highly prejudicial. See id.
The panel majority concludes that even if the error prejudiced Seale, the
court should not remedy such error pursuant to its discretion under the fourth
prong of plain-error analysis. It cites only Johnson v. United States, 520 U.S.
461 (1997). There, the Court reasoned that the failure to submit “materiality”
in a perjury prosecution to the jury, as opposed to the judge, was plain error. Id.
at 467-68. This was error only due to an intervening Supreme Court decision9;
nevertheless, the Court reasoned that the plainness of error may be assessed at

9
See United States v. Gaudin, 515 U.S. 506 (1995).

55
 No. 07-60732

the time of appeal. Id. at 468. The Court assumed that the error affected
substantial rights, but declined to correct it because the evidence was
“overwhelming:” materiality was “essentially uncontroverted at trial and has
remained so on appeal.” Id. at 469-70. In light of overwhelming evidence, the
Court reasoned that affirming would cause no miscarriage of justice. Rather,
reversing the conviction on the basis of such a technicality would cause greater
damage to the reputation of judicial proceedings. Id. at 470.10
I do not believe that Johnson v. United States is helpful to the issue before
this panel. It concerned a matter which was never contested by the litigants,
was manifest from the trial record, and only became a viable issue post-trial. In
such circumstances, reversal based upon the fortuitous issuance of new Supreme
Court authority seems a windfall to an undeserving litigant. If evidence to fill
a gap created by a technical deficiency is overwhelming and uncontroverted in
the first instance, and will remain so upon remand, a new trial is a wasteful
formality, which might indeed rightly stoke public ire. See Johnson v. United
States, 520 U.S. at 470; Cotton, 535 U.S. at 632-33.
In my view, Seale’s case could not be more factually distinct from Johnson
v. United States or Cotton. The admissibility of Seale’s confession was contested
from the outset. Aside from the prominent role the confession played in securing
guilty verdicts, it bears emphasizing that it was admitted in clear derogation of

10
The Court used identical reasoning in United States v. Cotton, 535 U.S. 625 (2002).
There, defendants were convicted of drug offenses and sentenced to terms in excess of twenty
years’ imprisonment based on judge-made findings that the drug quantities triggered enhanced
penalties. Id. at 627-28. After trial but before appeal, the Supreme Court issued Apprendi v.
New Jersey, 530 U.S. 466, 490 (2000) (“Other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt.”). The Cotton Court held that failure to
submit drug quantities to the jury was plain error under Apprendi, but, even assuming that
it prejudiced defendants, the Court did not need to correct the error because evidence of drug
quantities was “overwhelming” and “essentially uncontroverted.” 535 U.S. at 632-33.

56
 No. 07-60732

Seale’s Fifth Amendment privilege against compelled self-incrimination. The
Miranda Court deemed this privilege the “essential mainstay of our adversary
system.” 384 U.S. at 460. From and after Dickerson, see 530 U.S. at 444, it is
beyond doubt that the Miranda warnings are of constitutional provenance. We
must therefore be especially reticent to overlook errors of this magnitude. Cf.
Olano, 507 U.S. at 735. The error did not arise due to a new decision; it pre-
dated Seale’s trial by at least forty years. While such timing is not relevant
under the second prong of the plain-error test, see Johnson v. United States, 520
U.S. at 468, it is worth weighing when we consider the effect of a pure error of
law on the “fairness, integrity, or public reputation of judicial proceedings,” see
Olano, 507 U.S. at 736. The panel majority cites no case from this circuit, and
I have found none, which affirms a conviction after finding that the district court
committed a plain, prejudicial Miranda error.
The panel majority makes virtually no effort to liken this case to Johnson
v. United States; it merely cites the case as an example of an affirmance based
on the fourth prong of plain error. One would be hard-pressed to glean how
exactly the majority exercised its discretion to disregard the error. The majority
states it is “satisfied that the Government presented a strong case of guilt.”
Additionally, “[w]hile the defendant’s statement may have been helpful to the
Government, it was certainly not the centerpiece of its case.” With due respect,
I take a different view of the evidence and the law. The remaining evidence
discussed by the panel majority either corroborates Seale’s confession or
Edwards’s testimony. The jury heard details about the recovery of the victims’
remains, that the Roxie Baptist Church was searched for guns, and that Seale
belonged to the KKK. But this evidence simply does not place Seale at the scene
of the murders. Moreover, our job is not merely to excise improperly admitted
evidence and ask whether the case for guilt is tenable. In my view, this

57
 No. 07-60732

displaces the role of a properly informed jury. I disagree with the implication
that, so long as the appellate court feels that the remaining, properly admitted
evidence presents “a strong case of guilt,” it may overlook the deprivation of
virtually any substantial right. This is supported by neither the letter nor the
policy behind the Supreme Court’s plain-error jurisprudence. See ROGER J.
TRAYNOR, THE RIDDLE OF HARMLESS ERROR 50 (1970).11
The majority also indicates that it declines to correct the error in part
because Seale’s counsel was complicit in arguing the incorrect legal standard.
It is true that “Seale’s counsel had the primary responsibility of marshaling the
facts and law” in support of his motion to suppress. However, as I discuss above,
Seale’s original motion put the district court on notice of the lack of the proper
warnings to Seale concerning his right against compelled self-incrimination. I

11
Justice Traynor’s commentary on the effect of reversing non-prejudicial error was
cited by the Supreme Court in Johnson v. United States, 520 U.S. at 470, and echoed by the
panel majority in this case for the following: “Reversal for error, regardless of its effect on the
judgment, encourages litigants to abuse the judicial process and bestirs the public to ridicule
it.” I find the full passage from which the quote is taken instructive:
Appellate judges, persuaded by the record that the defendant committed some
crime, are often reluctant to open the way to a new trial, given not only the risk
of draining judicial resources but also the risk that a guilty defendant may go
free. The very reluctance of judges to confront such risks, however, serves to
condone errors that may affect a judgment and thus engenders a still more
serious risk, the risk of impairing the integrity of appellate review. Nothing is
gained by running such a risk and much is lost. If appellate judges forthrightly
opened the way to a new trial whenever a judgment was contaminated by error,
there would be a cleansing effect on the trial process. A sharp appellate watch
would in the long run deter error at the outset, thereby lessening the need of
appeal and retrials.
Like all too easy affirmance, all too ready reversal is also inimical to the judicial
process. Again, nothing is gained from such an extreme, and much is lost.
Reversal for error, regardless of its effect on the judgment, encourages litigants
to abuse the judicial process and bestirs the public to ridicule it.
TRAYNOR, supra, at 50. Thus, Justice Traynor cautioned against resort to extremes:
mechanical affirmance or reversal without careful consideration of the prejudicial effect of an
error. In my view, the first paragraph cited above aptly describes the panel majority’s
misguided treatment of the error in this case.

58
 No. 07-60732

reiterate that the government first (wrongly) cited Johnson v. New Jersey. From
the sequence of events, one might conclude that the government took a hard line
in stating repeatedly and unequivocally that Miranda had no applicability to
this case. Then, after obtaining a conviction and allowing Seale’s counsel to urge
a misbegotten legal theory in its opening brief, the government acknowledged
that it had been wrong all along. I personally impute no malice to the
government. However, to condone what objectively looks like legerdemain is to
turn the rule of forfeiture and the plain-error standard from doctrines which
uphold the administration of justice into tools for rubber-stamping shaky
convictions. It is the government’s conduct in this case which more resembles
the “sandbagging” that plain error review is intended to prevent. See Puckett v.
United States, 129 S. Ct. 1423, 1428 (2009) (citations and quotations omitted).
In light of these facts, I disagree that it would “bestir[] the public to ridicule” the
judicial system to require a new trial attendant with the basic guarantees that
the Constitution mandates.12
I feel that the panel majority has not conducted the “case-specific and fact-
intensive” review that is required to deny relief under the fourth prong of plain-
error review. See Puckett, 129 S. Ct. at 1433. Indeed, one must wonder whether
any plain error will be corrected after this decision. If an immensely prejudicial,
purely legal error affecting a fundamental constitutional right need not be fixed,
what error should be?
IV.

12
The possibility that the public would disapprove because guilty and innocent alike
would receive new trials, or in some cases, be set free, was not apparently of overriding concern
to the Supreme Court when it decided Miranda. Indeed, despite reversing his convictions, the
Court never showed any doubt that Ernesto Miranda had committed kidnaping and rape. See
384 U.S. at 492 & n.66.

59
 No. 07-60732

The clumsy handling of the Miranda issue in this case by all involved
dramatically indicates one of the sound policy reasons favoring repose in
statutes of limitations on criminal charges. At the time of Miranda (and
Johnson v. New Jersey) in 1966, it is likely that few, if any, of the attorneys
involved in this case were licensed or practicing. They would have no reason to
be personally familiar with the dramatic effects of Miranda and Johnson v. New
Jersey at the time those opinions were issued by the Supreme Court. Similarly,
the special circumstance here, i.e., the confession occurring before Miranda but
trial occurring after Miranda, was a circumstance that would have diminished
in frequency with the passage of time. If the five-year statute of limitations for
non-capital offenses was most frequently applied to criminal charges in the
1960’s and 1970’s, see 28 U.S.C. § 3282, the occasions on which a pre-1966,
un-Mirandized confession would be in issue would drop off significantly by 1971.
I can understand, therefore, that in Seale’s indictment and trial, which occurred
over forty years after Miranda and Seale’s confession to FBI agents, a new
generation of lawyers might never have had an occasion to be exposed to the
effect of Johnson v. New Jersey on the applicability of the Miranda rule. These
circumstances should not excuse a grievous misinterpretation of Johnson v. New
Jersey, which led the district court into error, but rather, should compel us to
demand more exacting application of the controlling law.
Our treatment of those accused of the most heinous and despicable acts is
a measure by which we mark our adherence to the rule of law. Today the panel
majority affirms a conviction which was derived from a trial lacking one of the
most important constitutional guarantees afforded to our citizens. On the basis
of the Miranda issue, and subject to my comments about the statute of
limitations, I believe that this conviction cannot stand. Respectfully, I dissent.

60