                                                           United States Court of Appeals
                                                                    Fifth Circuit
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT
                                                        FILED
                                                     November 14, 2008

                               No. 07-60732               Charles R. Fulbruge III
                                                                  Clerk

UNITED STATES OF AMERICA

                                                    Plaintiff-Appellee
     vs.


JAMES FORD SEALE
                                                    Defendant-Appellant


                              - - - - -
        Appeal from the United States District Court for the
         Southern District of Mississippi, Jackson Division
                              - - - - -

                       ON PETITION FOR REHEARING
                                  AND
                    PETITION FOR REHEARING EN BANC

    (Opinion September 09, 2008, 5 Cir., 2008, _____F.3d____)


BEFORE:    JONES, Chief Judge, KING, JOLLY, DAVIS, SMITH, WIENER,
           BARKSDALE, GARZA, BENAVIDES, STEWART, DENNIS, CLEMENT,
           PRADO, OWEN, ELROD, SOUTHWICK and HAYNES, Circuit
           Judges.

BY THE COURT:

          A member of the Court in active service having requested a

poll on the petition for rehearing en banc and a majority of the

judges in active service having voted in favor of granting a

rehearing en banc,

          IT IS ORDERED that this cause shall be reheard by the court

en banc with oral argument on a date hereafter to be fixed.                        The

Clerk   will    specify   a   briefing   schedule   for    the      filing           of

supplemental briefs.
JERRY E. SMITH, Circuit Judge, dissenting.


                                              I.
             I respectfully dissent from the decision to rehear this case en banc and
vacate the panel opinion. Judge DeMoss, writing for the unanimous panel, has
crafted a careful and convincing opinion. In its petition for rehearing en banc,
the government has not shown that the panel erred or that this case meets the
high standards for en banc consideration.
             The fault for this court’s predicament lies squarely with the Depart-
ment of Justice. Its delay of more than forty years in prosecuting defendant
Seale for this despicable crime, of which he has finally been found guilty by a
jury of his peers, is inexcusable. The government now asks this court to bail it
out by declaring a result that cannot be reached except by a strained explication
of the applicable statutes and caselaw.
             The result of the government’s inaction under myriad Attorneys
General is, to say the least, unfortunate. Because, as the panel held, Seale’s
conviction is barred by the statute of limitations, Seale must be set free and
cannot be successfully prosecuted for this unspeakable crime.
             It is a necessary consequence of having a government of laws that
wrongdoers at times must be released without further punishment.1 The de-
cision to rehear this matter en banc reflects a misunderstanding of the proper
function of the en banc process; the panel opinion should have been permitted
to stand.2


                                             II.
             The above-described error has now been unnecessarily and arbitrarily
compounded: Oral argument has been delayed until late May 2009. I respect-


       1
         See, e.g., United States v. Cuellar, 478 F.3d 282, 295-96 (5th Cir. 2007) (en banc)
(Smith, J., dissenting), majority opinion rev’d, 128 S. Ct. 1994 (2008) (explaining that where
a prosecution is mishandled, even bad people at times must be set free).
       2
         I am confident, however, that the en banc court will review this case with the utmost
integrity, uninfected with an unwholesome desire to achieve a particular result irrespective
of governing law.
fully disagree with that decision as well.
           The selection of a date for the oral submission of a case normally would
not be the subject of public comment. This case is different, as I will explain.
           For decades, this court has scheduled, in advance, three en banc
sessions each year, evenly spaced on the twelve-month calendar in January,
May, and September. In the eventSSand only in the eventSSthat no cases have
been voted for rehearing en banc, a particular en banc session will be canceled,
because there are no cases to be heard. In accordance with this longstanding
practice, the judges, their staffs, and other court personnel are notified well in
advance of the dates that have been set aside for en banc arguments, and the
remainder of the court calendar and court activities are set with the en banc ses-
sions in mind. The point of all this is that the time is carefully blocked out for
focus on the submission of en banc cases, which logically will be some of the more
important cases the court will take up in a given year.
           So it is that an en banc session was long ago scheduled for late January
2009. At the time the court’s yearly schedule is set, there is no way to know
which cases, or how many cases, will be reheard, so an en banc calendar, al-
though designated for January, May, or September, is empty until a case or cas-
es are voted en banc. Once a successful vote for en banc rehearing has been con-
cluded, that case is immediately set for the next en banc session.3
           That did not occur in this case, and it is the first time in my experience
that this has been so. The attorneys were notified, by letter dated November 14,
2008, that the case will be argued in late May, not late January, 2009. Although
a delay of four months in the submission of a case might not always be a matter
of great moment, it is significant here.
           As carefully explicated in the lengthy panel opinion, Seale is entitled
to be released, for the reason that, as a matter of law, he cannot be prosecuted
for this crime. The fact that this case has been selected for en banc rehearing


       3
         This assumes that as of the completion of the en banc poll, there is sufficient time be-
fore the en banc session for the parties to file the required supplemental en banc briefs and for
the court to have sufficient time to prepare for argument and submission of the case. My
empirical observation, based on twenty years’ experience on this court, is that a period of two
months or more is considered sufficient for that briefing and preparation.

                                               3
means, naturally, that Seale’s release will be delayed for many months even in
the event that the en banc court reaches a result that agrees with the panel’s.
Given that fact, the case should have been scheduled for the next available
regular en banc session, which is January. Instead, the January en banc
calendar is empty and unused; no cases will be argued en banc at that time. The
en banc session is available and blocked out for utilization but instead has been
nullified by the decision to delay this case to May.4
           The decision to leave the January en banc session emptySSalthough
made with the best of intentions and without malice toward SealeSSis a plain
and blatant violation of this court’s well-settled and statutorily-required rules
for expediting the submission and decision of criminal appeals. Those rules
impose both specific and general requirements on not only the judges of this
court but also on other actors in the federal appellate system, including
government and private attorneys, public defenders, district courts, and judicial
employees. The primary reason for those rules is to facilitate the final decisions
in criminal cases. This is in recognition of the undeniable and unremarkable
fact that some convictions will be reversed, or sentences reduced, so there is an
obvious need, in the interest of justice, to shorten as much as possible the time
a defendant may serve for a conviction or sentence that is flawed.
           Important here are the stringent duties that the Fifth Circuit Plan for
Expediting Criminal Appeals imposes on the judges of this court in fulfilling
their responsibility to expedite criminal appeals:
              Delays in deciding criminal cases are a matter of concern
           because by statute, criminal appeals must be expedited. . . .
           Fifth Circuit Judges are reminded of their obligations timely
           to screen and decide criminal appeals.

              ...



       4
          Shortly after the panel opinion was issued, Seale moved for release pending finaliza-
tion of his appeal. The panel denied the motion without prejudice, pending the outcome of the
petition for en banc rehearing. After receiving the order granting rehearing, Seale, under-
standably, has moved for reconsideration of the denial, relying in part on the fact that argu-
ment has been delayed to May. I here express no view on the merits of that motion, which is
pending before the en banc court.

                                              4
             This court gives criminal appeals the highest priority in
           screening, calendaring and decision. Our circuit judges must
           meet expedited time lines for screening criminal cases, and
           the clerk’s office must expedite calendaring of criminal
           appeals when oral argument is required . . . .

              . . . By court policy, each judge must give direct criminal
           cases priority in the preparation and publication of opinions
           over all other cases except previously submitted direct
           criminal cases.

(Emphasis added.) These rules impose similar responsibilities on others, even
under threat of sanctions.5            The decision to delay argument until May


       5
         The expediting plan reads in their entirely as follows, including the excerpts set forth
in the text:

                       UNITED STATES COURT OF APPEALS
                                 FIFTH CIRCUIT
                    PLAN FOR EXPEDITING CRIMINAL APPEALS
                             As Amended May 4, 2008

              1. Goal. The court desires to process criminal appeals at least within the
       federal appellate court median times from filing the notice of appeal to filing of
       the last brief, and from filing the notice of appeal to the court’s decision.

               2. Policy. Delays in deciding criminal cases are a matter of concern
       because by statute, criminal appeals must be expedited. The court grants exten-
       sions of briefing times only where the standards of the Federal Rules of Appel-
       late Procedures are met. If extensions are permitted, they are subject to the
       guidelines in the Fifth Circuit Rules, and Internal Operating Procedures (IOPs).
       Attorneys who violate the Federal, or Fifth Circuit Rules, or the court’s IOPs are
       subject to appropriate disciplinary sanctions. Court reporters must comply with
       the federal appellate and circuit rules governing the timely acknowledgment of
       transcript orders, and are directed to give precedence to transcribing criminal
       appeals before civil cases. District courts must meet the time limits established
       by the Fifth Circuit Rules and Court Reporter Management Plans, and must ef-
       fectively manage their court reporters. Fifth Circuit judges are reminded of their
       obligations timely to screen and decide criminal appeals.

              3. Procedures. Criminal Appeals. The Fifth Circuit clerk’s office is re-
       sponsible for: (a) communicating court policies concerning expediting criminal
       appeals; (b) supervising the processing of criminal cases; and (c) as requested,
       assembling data on reporters, clerks and counsel.

               Filing of Reporters’ Transcripts. District judges, clerks of court or court
       reporter coordinators are responsible for insuring court reporters give preference
       to filing transcripts in criminal cases before all other cases. Except in excep-
       tional cases, criminal transcript should be filed within the 30-day period spe-
       cified in FED. R. APP. P. 11(b). District judges, clerks of court, court reporter
                                                                               (continued...)

                                               5
5
 (...continued)
coordinators and court reporters are reminded of the requirements in 5TH CIR.
R. 11.2 governing requests for extension of time to file transcripts. Court repor-
ters should neither request routine extensions of time to file criminal tran-
scripts, nor expect them to be granted. Court reporters who ignore the require-
ments of this rule and fail to file transcripts timely risk the imposition of sanc-
tions. 5TH CIR. R. 11.2(c) requires district judges to verify the need for an exten-
sion and approve it before this court takes action. The district judges’ careful
review and adherence to this requirement will insure court reporters request
extensions of time only where exceptional circumstances exist. District courts
are responsible for overseeing the overall workload of their court reporters and
for insuring that criminal transcripts are managed and prepared as quickly as
possible.

       Communications to Counsel and Reporters. The Fifth Circuit clerk’s office
will advise court reporters and attorneys representing defendants and the
United States of the court’s policy on expediting criminal appeals, the court’s
rule requirements, counsel’s obligations, and establish due dates in accordance
with the Federal and Fifth Circuit Rules, and IOPs.

        Notice to Counsel and Reporters. FED. R. APP. P. 10(b) requires appel-
lant’s counsel to order a transcript, or to certify no transcript will be ordered,
within 10 days of filing the notice of appeal, or entry of an order disposing of cer-
tain motions in FED. R. APP. P. 4(a)(4)(A). Counsel must timely complete the
transcript order form provided by the district court, make financial arrange-
ments, and deliver the form to the court reporter by the most expeditious means.
As soon as received, the reporter immediately must advise the court when a
transcript has been ordered and payment arranged. The reporter also must give
this court an expected completion date and an estimated number of pages for
the transcript. Counsel and reporters may be sanctioned for failing to comply
with the provisions of the Federal Rules and this court’s implementing
procedures.

       Notice to U.S. Attorneys. When the clerk’s office issues a briefing notice
to appellant’s counsel in direct criminal cases, it also will provide notice to the
U.S. Attorney, advising of the court’s rules and policies governing criminal ap-
peals.

        Extensions of Time To File Briefs. Counsel may request extensions only
when absolutely necessary. The clerk or court will grant extensions sparingly
and only as set forth in the rules and IOPs. Extensions in criminal appeals will
be for the minimum time needed, and if granted, will exceed 30 days only in ex-
ceptionally rare instances. Counsel are responsible for reviewing the record on
appeal within 15 days of receipt. If there are omissions from the record, counsel
must notify the district court and this court of any missing materials, particu-
larly transcripts, and arrange immediately with the court reporter for any addi-
tional transcripts within this period. Counsel who fail to act promptly and to
make arrangements for a complete record within this time period, cannot expect
an extension of time to file the brief because their lack of diligence caused the
record to be incomplete.

       Screening and Calendaring Criminal Appeals. This court gives criminal
                                                                 (continued...)

                                         6
also violates Fifth Circuit Rule 47.7, which states that “appeals in criminal
cases” enjoy the top “preference in processing and disposition.”
            Happily, the failure to abide by these requirements in the present case
is an aberration. In fact, this court generally, and its dedicated judges in partic-
ular, take criminal-expediting seriously and do a commendable job of expediting
the briefing, submission, and decision of criminal cases.
            For example, the Clerk, on instruction from the court, sends each judge
a weekly list of overdue criminal decisions. When the calendar is prepared for
a given monthly session of panel arguments, absolute priority is given to
criminal cases that are ready for submission.6 Moreover, in their work on
criminal appeals, the judges of this court and their staffs, as well as our able
corps of staff attorneys, are constantly aware of the need to rule as promptly as
reasonably possible while still giving the criminal cases the careful attention
they deserve.
            The delay occasioned in this case is, as I have said, a regrettable lapse
with which I respectfully disagree. One can only hope and trust that it will not



       5
        (...continued)
       appeals the highest priority in screening, calendaring and decision. Our circuit
       judges must meet expedited time lines for screening criminal cases, and the
       clerk’s office must expedite calendaring of criminal appeals when oral argument
       is required. The clerk’s office will monitor criminal appeals to reinforce the
       court’s priorities in routing and return of cases for screening and in setting cases
       for oral argument when required. These procedures shall be reviewed and, if
       necessary, revised upon request from the court or Judicial Council.

               Disposition. The priority given to criminal cases continues after oral
       hearing or submission on the record and briefs. By court policy, each judge must
       give direct criminal cases priority in the preparation and publication of opinions
       over all other cases except previously submitted direct criminal cases.

               4. Disciplinary Action. For conduct unbecoming a member of the Bar,
       or for failure of counsel to comply with the applicable Federal and Fifth Circuit
       Rules, the court shall issue a show cause order as provided by FED. R. APP. P.
       46(c), and 5TH CIR. R. 42.3.1.1 and 42.3.3. Sanctions may be imposed upon de-
       linquent counsel as may be individually appropriate, ranging from reprimand
       to fine, or Criminal Justice Act financial deduction or removal from the roll of
       attorneys permitted to practice before this court.
       6
        A docket of cases to be argued in a given week to a particular panel may consist almost
exclusively of criminal cases, to the exclusion of civil cases, if the list of unheard criminal cases
so requires.

                                                 7
happen again.




                8
