Fifth Circuit Asks For Help -- Can Non-Homicide "Cold Cases" Be Re-Opened?

The drama of the James Ford Seale case continues. Today the United States Court of Appeals for the Fifth Circuit asked the U.S. Supreme Court to answer this question:

What statute of limitations applies to a prosecution under 18 U.S.C. Section 1201 for a kidnapping offense that occurred in 1964 but was not indicted until 2007?"

US v Seale

SCOTUSblog discusses this unusual procedure:

In a rare move, the Fifth Circuit Court on Thursday sent to the Supreme Court, with a plea for an answer, a legal question on the time allowed for federal prosecution of an old kidnapping case. The answer, the Circuit Court said, could shut down federal prosecutions of perhaps two dozen old “cold cases” involving civil rights violations.

Because the Circuit Court, sitting en banc, had divided 9-9 on the issue, it could not itself give a definitive answer. Thus, the full Circuit Court, by a 12-6 vote, opted to “certify” the question to the Supreme Court directly — a procedure that is allowed by federal law and Supreme Court Rules, but seldom is used.


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The Supreme Court, under its Rule 19, does not have to answer questions submitted to it in this way. The procedure is to put the question before the Court for a preliminary review of whether to call for briefs or argument, or to dismiss it without an answer. The Court’s Rule then goes on to spell out what happens if briefing is ordered.

The dissenting judges on the Fifth Circuit, arguing that the issue was not worth either the Circuit Court’s or the Supreme Court’s time, noted that the Supreme Court had responded to a certified question of law only four times in more than 60 years. “The likelihood of the Court’s accepting certification, based on past usage, is virtually nil,” the six dissenters argued.

The Supreme Court has not yet received the Circuit Court plea. There is no timetable for acting on it.