IN THE UNITED STATES COURT COURT OF APPEALS OF APPEALS FOR THE FIFTH CIRCUIT UNITED STATES OF OF AMERICA, FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

Transcription

1 No IN THE UNITED STATES COURT COURT OF APPEALS OF APPEALS FOR THE FIFTH CIRCUIT UNITED STATES OF OF AMERICA, v. JAMES FORD SEALE, Plaintiff-Appellee Defendant-Appellant ON APPEAL FROM THE THE UNITED UNITED STATES STATES DISTRICT DISTRICT COURT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI OF EN BANC BRIEF FOR FOR THE THE UNITED UNITED STATES STATES AS APPELLEE AS APPELLEE LORETTA KING Acting Assistant Attorney General JESSICA DUNSAY SILVER TOVAH R. R. CALDERON Attorneys Department of of Justice Civil Rights Division Appellate Section Ben Franklin Station P.O. Box Washington, DC (202)

2 TABLE OF OF CONTENTS PAGE JURISDICTIONAL STATEMENT STATEMENT OF OF THE THE ISSUES STATEMENT OF OF THE THE CASE. CASE SUMMARY OF OF ARGUMENT ARGUMENT I THE STATUTE OF OF LIMITATIONS DID NOT DID NOT BAR PROSECUTION OF OF THE THE DEFENDANT IN 2007 FOR HIS 1964 CONDUCT A. Standard Of Review B. Statutory Scheme C. Congress s 1972 Amendment To To The The Federal Kidnaping Statute Does Not Not Apply Apply Retroactively For Statute-Of-Limitations Purposes The 1972 Amendment Applies Prospectively Because Congress Did Did Not Express A Contrary Intent Congress Did Not Intend To To Shorten The The Limitations Period Applicable To To Pre-1972 Pre-1972 Violations Of Of The The Kidnaping Statute. Statute Even If Congress Intended To To Change The The Statute Of Limitations In In 1972, 1972, The The Amendment Remains Substantive For For Retroactivity Purposes Under Griffon...18.

3 TABLE OF OF CONTENTS (continued): (continued): PAGE 4. This Court Should Reject Reliance On On Provenzano Because That Case Was Wrongly Decided Because The 1972 Amendment Does Not Apply Retroactively, The The Saving Clause Preserves The 1964 Version Of Of The The Kidnaping Statute For For Purposes Of Of This Prosecution D. Kidnaping Remained A A Capital Offense For For Statute-Of-Limitations Purposes After After Jackson The Court In In Jackson Invalidated The The Death Penalty For Kidnaping But But Did Did Not Change The Statute s Basic Operation Judicial Invalidation Of Of The The Death Death Penalty Has No Effect On On The The Applicable Statute Of Of Limitations CONCLUSION CERTIFICATE OF OF SERVICE CERTIFICATE OF OF COMPLIANCE ADDENDUM Exhibit A: A: Court Memorandum of November of 19, 19, Exhibit B: B: Court Order of February of 10, , ii-

4 TABLE OF OF CONTENTS (continued): (continued): PAGE Exhibit C: C: Act Act for for the the Protection of Foreign of Foreign Officials Officials and Official and Official Guests of the United States: Public Law Law Exhibit D: D: Senate Report Exhibit E: E: 118 Cong. Record (August (August 7, 1972) 7, 1972) -iii-

5 TABLE OF OF AUTHORITIES CASES: PAGE Bernstein v. Sullivan, F.2d F.2d (10th (10th Cir. Cir. 1990). 1990) De La Rama S.S. Co. v. United States, 344 U.S (1953) Dobbert v. v. Florida, U.S. U.S (1977). (1977) Friel v. v. Cessna Aircraft Co., Co., F.2d F.2d (5th (5th Cir. Cir. 1985) )... 14, 18 Furman v. v. Georgia, U.S. U.S (1972) , 31 Greene v. United States, 376 U.S (1964) Griffon v. v. United States Dep t of of Health Health & Human & Human Servs., Servs., 802 F.2d 146 (5th Cir. 1986) passim Hall v. v. United States, F.2d F.2d (4th (4th Cir.), Cir.), cert. denied, 396 U.S. 970 (1969) Landgraf v. v. USI Film Prods., U.S. U.S (1994). (1994) , 21 Smith v. Johnson, 458 F. F. Supp. 289 (E.D. La. La. 1977), aff'd, 584 F.2d 758 (5th Cir. Cir. 1978)... 27, 33 Stogner v. California, U.S. U.S (2003) Toussie v. United States, 397 U.S (1970) Turner v. v. United States, F.2d (5th (5th Cir. Cir. 1969). 1969) United States v. Bland, 458 F.2d 1 1 (5th (5th Cir.), Cir.), cert. denied, 409 U.S. 843 (1972) United States v. Blue Sea Line, 553 F.2d (5th Cir. 1977) , 17, 25, 27 -iv-

6 CASES (continued): PAGE United States v. Brace, 145 F.3d (5th (5th Cir.), Cir.), cert. denied, 525 U.S. 973 (1998) United States v. Brechtel, 997 F.2d 1108 (5th (5th Cir.), Cir.), cert. denied, 510 U.S (1993) United States v. Coon, 411 F.2d (8th (8th Cir. Cir. 1969). 1969) United States v. Crowell, F.2d F.2d (5th (5th Cir. Cir. 1974). 1974) United States v. Ealy, 363 F.3d (4th (4th Cir.), Cir.), cert. denied, 543 U.S. 862 (2004) United States v. Edwards, 159 F.3d 1117 (8th (8th Cir. Cir. 1998), 1998), cert. denied, 528 U.S. 825 (1999) United States v. Flores, 135 F.3d 1000 (5th (5th Cir. Cir. 1998), 1998), cert. denied, 525 U.S (1999) United States v. Goseyun, 789 F.2d 1386 (9th (9th Cir. Cir. 1986). 1986) United States v. Grimes, 142 F.3d 1342 (11th (11th Cir. Cir. 1998), 1998), cert. denied, 525 U.S (1999) United States v. Gunera, 479 F.3d (5th (5th Cir. Cir. 2007). 2007)... 8 United States v. Haines, 855 F.2d (5th (5th Cir. Cir. 1988) United States v. Hoyt, 451 F.2d (5th (5th Cir. Cir. 1971), 1971), cert. denied, 405 U.S. 995 (1972)... 7, 34 United States v. Jackson, 390 U.S (1968) passim United States v. v. Johnson, F. F. Supp. 2d 2d (N.D. Iowa 2003) v-

7 CASES (continued): PAGE United States v. Kaiser, 545 F.2d (5th (5th Cir. Cir. 1977). 1977) , 31, 35 United States v. Kennedy, 618 F.2d (9th (9th Cir. Cir. 1980). 1980) United States v. Kostadinov, F.2d F.2d (2d (2d Cir. Cir. 1983). 1983) United States v. Maestas, 523 F.2d (10th Cir. Cir. 1975) United States v. Manning, F.3d F.3d (9th (9th Cir. Cir. 1995) ) United States v. Martinez, F. F. Supp. 2d 2d (D.N.M. 2007), 2007), appeal dismissed, 272 F. App'x (10th Cir. Cir. 2008). 2008) United States v. McNally, F.2d F.2d (8th (8th Cir. Cir. 1973), 1973), cert. denied, 415 U.S. 978 (1974) United States v. Owens, 965 F. F. Supp (D. (D. Mass. 1997) United States v. Provenzano, 423 F. F. Supp. 662, 662, (S.D.N.Y. 1976) 1976) aff'd, 556 F.2d 562 (2d (2d Cir. Cir. 1977) United States v. Safarini, F. F. Supp. 2d 2d (D.D.C. 2003) , 21 United States v. Steel, 759 F.2d 706 (9th Cir. Cir. 1985) , 36 United States v. Vanella, F.2d (5th (5th Cir. Cir. 1980) ) , 13, United States v. Watson, 496 F.2d 1125 (4th (4th Cir. Cir. 1973). 1973) United States v. Winters, 424 F.2d (5th (5th Cir. Cir. 1970) Warden, Lewisburg Penitentiary v. v. Marrero, 417 U.S. 653 (1974) Willenbring v. v. Neurauter, M.J. M.J (C.A.A.F. 1998) ) vi-

8 CONSTITUTION: PAGE Ex Post Facto Clause of of the the Constitution, U.S. Const. Art. I, I, 9, 9, Cl. Cl STATUTES: 1994 Violent Crime Act, Act, Pub. Pub. L. L. No. No , , Stat. Stat (a)(11), (12) (a)(6) (2)(c) Act for the Protection of of Foreign Officials and and Official Official Guests Guests of theof the United States, Pub. L. L. No. No , Stat. Stat Section , 16 Civil Monetary Penalties Law Law (CMPL), 42 U.S.C. 42 U.S.C. 1320a-7a 1320a-7a (1983)... (1983) U.S.C , U.S.C U.S.C passim 18 U.S.C. 1201(a) U.S.C. 1201(a)(1) (1964) U.S.C. 1201(c) U.S.C U.S.C U.S.C U.S.C passim -vii-

9 STATUTES (continued): PAGE 18 U.S.C passim 18 U.S.C U.S.C U.S.C U.S.C U.S.C U.S.C , U.S.C U.S.C. 1301(32) LEGISLATIVE HISTORY: Act for the Protection of of Foreign Officials and and Offical Offical Guests Guests of the United States Senate Report, S. S. Rep. No. 1105, 92d Cong., 2d Sess. (1972) Cong. Rec (Aug. 7, 7, 1972) RULE: Fed. R. Crim. P. P. 24(b)... 7, viii-

10 IN THE UNITED STATES COURT COURT OF APPEALS OF APPEALS FOR THE FIFTH CIRCUIT No UNITED STATES OF OF AMERICA, v. Plaintiff-Appellee JAMES FORD SEALE, Defendant-Appellant ON APPEAL FROM THE THE UNITED UNITED STATES STATES DISTRICT DISTRICT COURT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI OF EN BANC BRIEF FOR FOR THE THE UNITED UNITED STATES STATES AS APPELLEE AS APPELLEE JURISDICTIONAL STATEMENT A federal grand jury charged the the defendant under under U.S.C. U.S.C. 1201(a) 1201(a) and and (c). (c). The district court had had jurisdiction under under 18 U.S.C. 18 U.S.C Final Final judgment judgment was was entered on September 18, The The defendant filed filed a timely a timely notice notice of appeal. of appeal. This Court has jurisdiction to to review review the the district district court court judgment judgment under under 28 U.S.C. 28 U.S.C STATEMENT OF OF THE THE ISSUES ISSUES On November 19, 2008, this this Court issued issued a memorandum a advising advising counsel counsel

11 -2- to limit briefing and and oral oral argument to the to the issue issue addressed by the by panel, the panel, that that is, is, whether the change in in the the statute of of limitations for the for federal the federal kidnaping kidnaping statute, statute, which was effected by by the the amendment to to the the federal federal kidnaping statute, statute, applies retroactively to to [the [the defendant s] conduct conduct (Mem. (Mem. 11/19/08).1 11/19/08). 1 On February 10, 2009, this this Court asked asked counsel for for the the United United States States to also to also address: (1) whether the Supreme Court lacks lacks constitutional authority authority to to transform a capital crime into into a non-capital a crime crime for all for purposes all purposes when Congress has exercised its its constitutional prerogative to classify to classify the crime as capital and that classification is consonant is with with the the Eighth Amendment; and and (2) (2) whether, consequently, federal federal kidnaping kidnaping remained a capital crime for for statute-of-limitations purposes purposes after after United States v. v. Jackson, 390 U.S. U.S (1968), because the the Court Court held that 18 U.S.C s death penalty provisions violated violated a a defendant s procedural rights under the the Fifth Fifth and and Sixth Sixth Amendments but did not hold that that the the provisions violated violated the the defendant s substantive rights under the the Eighth Amendment. 2 (Order 2/10/09). 2Additionally, this this Court Court asked asked counsel counsel for the for United the United States States to to address whether this issue is is properly preserved for for en banc en banc consideration, and and any other issues that might bear bear on on the the separation-of-powers question question that that counsel determines appropriate (Order 2/10/09). 1 The Court s memorandum is is attached hereto as as Exhibit A. A. 2 The Court s order is is attached hereto as as Exhibit B. B.

12 -3- STATEMENT OF OF THE THE CASE CASE On January 24, 2007, a a federal grand jury jury in in the the Southern District District of of Mississippi returned an an indictment charging the the defendant, James James Ford Ford Seale, Seale, with with two counts of of kidnaping, in in violation of 18 of U.S.C. 18 U.S.C. 1201(a), 1201(a), and one and count one count of of conspiracy to to kidnap, in in violation of 18 of U.S.C. 18 U.S.C. 1201(c), 1201(c), for his for role, his as role, a member as a member of the White Knights of of the the Ku Ku Klux Klux Klan Klan of Mississippi, of Mississippi, in abducting abducting and killing and killing two young, African-American men men on May on May 2, , The defendant moved to to dismiss the the indictment, arguing arguing that that the the prosecution was barred by by the the five-year statute statute of limitations of applicable applicable to noncapital crimes, U.S.C. 3282, because: (1) (1) in 1968, in 1968, the Supreme the Supreme Court Court in United in United States v. Jackson, 390 U.S. 570, struck down down the the death death penalty penalty provision provision of 18of 18 U.S.C. 1201; and (2) (2) in in 1972, Congress repealed it. The it. The United United States States argued argued that that the prosecution was timely because in in 1964, 1964, at at the the time time of the of the offense, offense, kidnaping kidnaping was a capital crime subject to to no no limitation on prosecution, on pursuant pursuant to 18 to U.S.C. 18 U.S.C The district court court denied denied the the motion. motion. On June On June 14, 2007, 14, 2007, a jury a found jury found the the defendant guilty of of all all counts. The defendant appealed. He He raised numerous issues, including whether whether the district court erred in in denying his his motion motion to dismiss to dismiss based based on the on statute the statute of of limitations. Oral Oral argument was was held held on June on June 2, 2008, 2, 2008, before before Judges Judges Davis, Davis, Smith, to non- Smith,

13 -4- and DeMoss. On September 9, 2008, the panel issued a a published opinion vacating vacating the the defendant s conviction and and rendering a judgment a of acquittal. of acquittal. See Slip See Op. Slip 20. Op The panel held that the 1972 amendment to to U.S.C. 1201, 1201, which which reclassified kidnaping as as a non-capital crime, applied retroactively to make to make 18 U.S.C. 18 U.S.C s 3282 s five-year limitations period period applicable to pre-1972 to pre-1972 violations violations of the of kidnaping the kidnaping statute. See ibid. The The panel panel therefore concluded that that the 2007 the 2007 indictment indictment of theof the defendant for his 1964 conduct was was time-barred. See See ibid. ibid. The panel The panel did not did not address the effect of Jackson or or any any of of the the other other issues issues raised raised on on appeal. appeal. On September 23, the United States petitioned this this Court Court for panel for panel rehearing and rehearing en en banc, arguing that that the the panel s retroactive application of of the 1972 amendment for limitations purposes conflicted with with this Court s this Court s precedent on statutory interpretation, as as set set forth forth in Griffon in Griffon v. United v. United States States Department of of Health && Human Services, F.2d F.2d (5th (5th Cir. 1986). Cir. 1986). On November 14, 2008, this this Court granted the the United United States States petition petition for for rehearing en banc. On On December 15, 15, 2008, 2008, this this Court Court denied denied the defendant s the motion for reconsideration of of his his renewed motion motion for release for release pending pending appeal. appeal. 3 3 The panel s opinion (Slip (Slip Op.) Op.) is published at 542 at 542 F.3d F.3d (5th Cir. (5th Cir. 2008).

14 -5- SUMMARY OF OF THE THE ARGUMENT Prosecution of the defendant in in for for his his violations violations of the of federal the federal kidnaping statute was not not time-barred. At the At the time time of the of offense, the offense, kidnaping kidnaping was was punishable by by death and and thus thus subject to no to no limitation on prosecution on prosecution under under U.S.C In In 1972, Congress amended the the kidnaping statute statute to enlarge to enlarge its its scope, extend its geographic reach, and and reduce the the maximum penalty penalty from from death death to to life imprisonment. As As a result a result of the of the change change in punishment, in kidnaping kidnaping became became a a non-capital crime subject to to a five-year a limitation on prosecution, on prosecution, pursuant pursuant to 18 to 18 U.S.C The The defendant argues, as as the the panel panel held, held, that that the the amendment applies retroactively for for statute-of-limitations purposes purposes because because changes changes in in limitations periods are are procedural changes that that always always apply apply on a on retroactive a retroactive basis. basis. That argument fails. Under rules of of statutory interpretation and and this this Court s Court s precedents, precedents, the 1972 the 1972 amendment is substantive legislation and and cannot be be applied applied retroactively for any for any purpose. First, the the presumption against retroactivity requires requires that the that amendment the amendment apply prospectively, absent express congressional intent intent to the to the contrary. contrary. Because Because Congress did not express an an intent to to make any any of of the the changes effected by the by the amendment retroactive, and because the the Ex Ex Post Facto Clause would would prohibit prohibit retroactive application of of the the new new crimes crimes created created by the by the amendment, it is presumed it is presumed

15 -6- to apply prospectively. Second, this this presumption is not is affected not affected by the by rule the that rule that procedural changes usually apply to to pending cases, cases, because the the amendment is not a procedural statute. An An examination of the of amendment s the text and text and legislative history confirms that that the the purpose purpose of the of the amendment was was to affect to affect substance, not procedure. Moreover, the the fact fact that that Congress set set out out to expand to expand criminal liability under under U.S.C. U.S.C belies belies the argument the argument that Congress that Congress intended intended to shorten the limitations period for for prosecuting violations violations of the of statute. the statute. Finally, Finally, even if Congress intended to to change the the applicable limitations period period with its with its passage of the 1972 amendment, that change still still cannot apply apply retroactively to the to the defendant s conduct because, as as this Court held held in in Griffon Griffon v. United v. United States States Department of of Health && Human Services, F.2d F.2d (5th (5th Cir. 1986), Cir. 1986), legislation that is is both procedural and and substantive cannot cannot be applied be applied partially partially on a on a retroactive basis, absent express congressional intent to to sever sever the the procedural and and substantive applications. There There is no is no evidence of such of such intent intent this in case. this case. Because Because the 1972 amendment does not apply retroactively for for any any purpose, purpose, the general the general saving clause, 1 U.S.C. 109, permitted the the United United States States to prosecute to the the defendant in 2007 under the the law law in in effect effect at the at the time time of the of offense, the offense, which which includes includes the 1964 version of of the the kidnaping statute statute and and U.S.C. U.S.C The defendant s alternative argument, that that the the Supreme Court s Court s decision decision in in

16 -7- United States v. v. Jackson, 390 U.S (1968), retroactively reclassified kidnaping kidnaping as a non-capital crime for for statute-of-limitations purposes, purposes, also also fails. fails. Guided Guided by by separation-of-powers concerns, the the Court in Jackson in invalidated the death the death penalty penalty provision of of the the federal kidnaping statute, statute, but but left left intact intact the statute s the statute s basic basic operation. Every court court of of appeals to address to address the the issue issue has has held held that that judicial judicial invalidation of of the the death penalty has has no no effect effect on the on the applicability of 18 of U.S.C. 18 U.S.C in cases charging offenses punishable by by death death because because statutes statutes of of limitations are are tied tied to to the the serious nature nature of capital of capital crimes, crimes, not to not the to imposition the imposition of of capital punishment. Consequently, this this Court s Court s decisions decisions in United in United States States v. Hoyt, v. Hoyt, 451 F.2d 570 (5th Cir. 1971) (per (per curiam), cert. cert. denied, denied, U.S. U.S. 995 (1972), 995 (1972), and and United States v. v. Kaiser, F.2d F.2d (5th (5th Cir. Cir. 1977), 1977), are inapposite are inapposite because because those those cases addressed the applicability of of Federal Rule Rule of Criminal of Procedure Procedure 24(b) 24(b) and and 18 U.S.C. 3432, which are are tied tied to to the the death death penalty, not not to the to the offense, offense, because because they provide additional protections for for capital capital defendants at trial. at trial. Hoyt and Hoyt Kaiser and Kaiser did not address the statute-of-limitations issue issue presented in this in this case. case. Accordingly, Jackson did did not not retroactively affect affect the limitations the limitations period period governing governing prosecution of of the the defendant s conduct.

17 -8- ARGUMENT THE STATUTE OF OF LIMITATIONS DID NOT DID BAR NOT PROSECUTION BAR PROSECUTION OF THE DEFENDANT IN 2007 IN 2007 FOR FOR HIS 1964 HIS CONDUCT 1964 CONDUCT The defendant argues (Br ) that that the the indictment in this in this case case is is time-barred under U.S.C. 3282, which which provides a five-year a five-year limitation limitation on prosecution of of non-capital crimes, because in 1972, in 1972, Congress repealed repealed the the death death penalty provision of of the the federal kidnaping statute, statute, 18 U.S.C. 18 U.S.C The defendant The defendant contends, as the panel held (Slip Op. Op. 20), 20), that that the the amendment s impact impact on on the statute of limitations effected a procedural a change change that that applies applies retroactively to to pre-1972 conduct. The The defendant also also argues argues (Br. (Br ), 18-27), in the in alternative, the alternative, that that the Supreme Court s decision in in United States States v. Jackson, v U.S. U.S (1968), (1968), which invalidated the the death penalty provision of the of kidnaping the kidnaping statute, statute, retroactively shortened the the limitations period period in this in this case. case. As set As forth set below, forth below, the the defendant s arguments lack merit. A. Standard Of Review This Court reviews de de novo the the district court s court s legal legal conclusions conclusions in relation in relation to the statute of limitations. See See United United States States v. Gunera, v. Gunera, F.3d F.3d 373, 373, 376 (5th 376 (5th Cir. 2007).

18 -9- B. Statutory Scheme This case was brought under the the 1964 version of of the the federal federal kidnaping statute, 18 U.S.C. 1201, which provided, in pertinent pertinent part: part: (a) Whoever knowingly transports in interstate or foreign foreign commerce, commerce, any person who has been unlawfully seized, confined, inveigled, decoyed, kidnaped, abducted, or or carried away away and and held held for for ransom ransom or or reward or otherwise, except, in in the the case case of of a minor, a minor, by a by parent a parent thereof, shall be be punished (1) (1) by by death death if the if the kidnaped person person has has not not been liberated unharmed, and if if the the verdict of the of the jury jury shall shall so so recommend, or (2) by by imprisonment for for any any term term of years of years or for or life, for life, if the death penalty is is not not imposed. * * * * * (c) If two or or more persons conspire to to violate violate this this section section and and one one or or more of such persons do do any overt act act to to effect effect the the object object of the of the conspiracy, each shall be be punished as as provided in in subsection (a). (a). Thus, in 1964, violations of of the the kidnaping statute statute were were punishable punishable by death by death if the if the kidnaped person has not been liberated unharmed, and and if the if the verdict verdict of the of jury the jury shall so recommend U.S.C. 1201(a)(1) (1964). (1964). Prosecution Prosecution of such of such violations was governed by by U.S.C (1964), (1964), which which provided provided that [a]n that [a]n indictment for for any any offense punishable by by death death may may be found be found at any at any time time without without limitation. In 1972, Congress passed the Act for for the the Protection of Foreign of Foreign Officials Officials and and

19 -10- Official Guests of of the the United States, States, Pub. 4 Pub. L. No. L. No , , 86 Stat. 86 Stat. 1072, 1072, 4which which amended 18 U.S.C as as follows: (a) Whoever unlawfully seizes, confines, inveigles, decoys, decoys, kidnaps, kidnaps, abducts, or carries away and holds for for ransom or or reward reward or otherwise or any person, except in in the case of of a a minor by by the the parent parent thereof, when: when: (1) the person is is willfully transported in interstate interstate or foreign foreign commerce; (2) any such act against the person is is done within the the special special maritime and territorial jurisdiction of the of United the United States; States; (3) any such act against the person is is done within the the special special aircraft jurisdiction of of the the United United States States as defined as defined section in section 101(32) of of the Federal Aviation Act Act of 1958, of 1958, as amended as amended (49 (49 U.S.C. 1301(32)); or or (4) the person is is a foreign official as as defined defined section in section 1116(b) 1116(b) or an official guest as as defined in in section 1116(c)(4) of this of title, this title, shall be punished by by imprisonment for for any any term term of years of years or for or life. for life. * * * * * (c) If two or or more persons conspire to to violate violate this this section section and and one one or or more of such persons do do any overt act act to to effect effect the the object object of the of the conspiracy, each shall be be punished by by imprisonment for for any any terms terms of of years or for life. As set forth above, Congress in in made made several substantive changes changes to to the federal kidnaping statute. See See Pub. Pub. L. No. L. No , , 201, 201, 86 Stat. 86 Stat First, First, Congress extended the statute s geographic reach to to include acts acts committed within within the special maritime, territorial, and and aircraft aircraft jurisdiction of the of United the United States. States. See See ibid. Next, Congress expanded the the scope scope of the of the statute statute to include to include acts acts committed committed 4 The Act is is attached hereto as as Exhibit C. C.

20 -11- against foreign officials and and official official guests, guests, regardless regardless of where of where those those acts were acts were committed. See See ibid. Finally, Finally, Congress Congress substituted substituted the maximum the maximum sentence sentence of of death with a term of of life life imprisonment. See See ibid. ibid. As a result As a result of the of change the change in the in the maximum penalty, kidnaping became a non-capital a offense offense and and violations violations of theof the amended statute were subject to to a a five-year limitation on prosecution, on pursuant pursuant to to 18 U.S.C (1972). C. Congress s 1972 Amendment To To The The Federal Kidnaping Statute Statute Does Does Not Not Apply Retroactively For For Statute-Of-Limitations Purposes Purposes Under rules of of statutory interpretation and and this this Court s Court s precedents, precedents, the 1972 the 1972 amendment is substantive legislation that that applies prospectively only. only. Accordingly, the the change in in the the applicable statute statute of limitations of limitations does does not govern not govern pre-1972 violations of of U.S.C The 1972 Amendment Applies Prospectively Because Congress Did Did Not Express A Contrary Intent On the issue of retroactive application of statutes, of statutes, this this Court Court has has repeatedly repeatedly recognized that the first first rule rule of of construction is that is that legislation legislation must must be considered be considered as addressed to the future, not to to the the past, and and that that a a retrospective operation operation will will not be given to to a a statute which interferes with with antecedent rights rights absent absent the clearly the clearly expressed intention of of Congress. United United States States v. Vanella, v. Vanella, 619 F.2d 619 F.2d 384, , 385 (5th Cir. 1980) (quoting Greene v. United v. United States, States, U.S. U.S. 149, 149, 160 (1964)) 160 (1964))

21 -12- (internal quotation marks omitted); accord accord Griffon Griffon v. United v. United States States Dep t Dep t of of Health & Human Servs., F.2d F.2d 146, 146, (1986); (1986); see see also also Landgraf Landgraf v. USI v. Film USI Film Prods., 511 U.S. 244, (1994) ( If ( If the the statute statute would would operate operate retroactively, retroactively, our our traditional presumption teaches that that it does it does not not govern govern absent absent clear clear congressional intent favoring such a a result. ). Indeed, Indeed, [i]t [i]t would would be most be presumptuous most presumptuous for a for a court to presume Congress meant to to allow retroactivity by indirection, by indirection, the in face the face of the established presumption which requires that that only only prospective operation operation be be given every statute which changes established rights rights unless unless retroactive application application is the unequivocal and inflexible import import of the of terms the terms of the of legislation the legislation and the and the manifest intention of of the the legislature. United United States States v. Winters, v. Winters, 424 F.2d , F.2d , 116 (5th Cir. 1970). There is no indication in in either either the the statutory text text or the or legislative the legislative history history that Congress intended any part of of the the amendment to apply to apply retroactively. On On the contrary, the amendment enlarged both both the the scope scope and and geographic reach reach of the of the kidnaping statute, thereby criminalizing conduct conduct that that did not did violate not violate federal federal law law before it it was enacted. Such changes affect substantive rights rights and and could could not, not, pursuant to the Ex Post Facto Clause of of the the Constitution, U.S. U.S. Const. Const. Art. I, Art. 9, I, 9, Cl. 3, apply to to acts committed before the the amendment s date date of enactment. of Accordingly, the the 1972 amendment is substantive is legislation that that is presumed is presumed to to

22 -13- apply prospectively because Congress did did not not express a contrary a intent. intent. See See e.g., e.g., Landgraf, 511 U.S. at at (explaining that that the the antiretroactivity principle principle finds finds expression in several provisions of of our our Constitution, including including the Ex the Post Ex Post Facto Clause[, which] flatly flatly prohibits retroactive retroactive application application of penal of penal legislation ); United States States v. Haines, v. Haines, F.2d F.2d 199, 199, (5th Cir. (5th 1988) Cir. 1988) (Where [a] contrary interpretation would would lead lead to open to open and obvious and obvious violations violations of of the ex post facto prohibition in in the the Constitution, courts courts presume presume that [s]uch that [s]uch clearly was not the intent of of Congress. ). 2. Congress Did Not Intend To To Shorten The The Limitations Period Period Applicable To To Pre-1972 Violations Of The Of The Kidnaping Kidnaping Statute Statute This Court has also recognized, however, that that the the presumption against against retroactivity must yield yield to the to the rule rule * * * that * * changes that changes in statute in statute law relating law relating only only to procedure or remedy are are usually held held immediately applicable to pending to pending cases. cases. Vanella, 619 F.2d at at (quoting Turner Turner v. United v. United States, States, 410 F.2d , F.2d , (5th 842 (5th Cir. 1969)); accord Griffon, F.2d F.2d at 154. at 154. Because Because it is it often is often said that said statutes that statutes of limitation go go to to matters of of remedy remedy rather rather than than to fundamental to rights, rights, * * * the * * * the canon of statutory construction mandating a presumption a against against retroactivity has has been said to apply with less less force, or or not not at all, at all, to changes to changes in limitations in limitations periods. periods. United States v. v. Flores, F.3d F.3d 1000, 1000, n.11 n.11 (5th (5th Cir. Cir. 1998), 1998), cert. cert. denied, denied,

23 U.S (1999) (citations omitted). Thus, Thus, an amendment an amendment that simply that simply changes a limitations period but but does does not not affect affect substantive rights rights applies applies retroactively in in the the absence of of clear clear congressional intent intent to the to contrary. the contrary. See Friel See Friel v. Cessna Aircraft Co., Co., F.2d F.2d 1037, 1037, (5th (5th Cir. Cir. 1985). 1985). Although the the 1972 kidnaping amendment indirectly affected affected the applicable the applicable statute of limitations due due to to its its repeal repeal of the of the death death penalty, penalty, that that result result did not did not render the amendment itself procedural for for retroactivity purposes. purposes. Where Where the the question is whether a a statutory change affects penalty or procedure, or this Court this Court consults the statutory language and and legislative intent intent * * ** in * search * in search of of implications that that Congress was was either making a procedural a change change or reassessing or the substance of criminal liability or punishment. or United United States States v. Blue v. Sea Blue Line, Sea Line, 553 F.2d 445, 449 (5th Cir. Cir. 1977); see see also also Griffon, F.2d F.2d at 154 at 154 ( Characterization of of a statute a [as [as substantive or procedural] or does does not depend not depend on on its particular application, but but on on its its very very nature. ). nature. ). Here, Here, the plain the meaning plain meaning of the of the amendment was to broaden the reach of of the the federal kidnaping statute statute and and to to change the maximum available punishment, not not to change to change the the limitations period. period. The language makes no reference to to the the statute of of limitations, or to or any to any other other remedy or procedure. By contrast, when Congress intends to to change the the limitations period period for afor a

24 -15- particular offense, it it usually does does so so explicitly. See, See, e.g., e.g., 18 U.S.C. 18 U.S.C (extending the statute of of limitations for for certain certain terrorism terrorism offenses); offenses); 18 U.S.C. 18 U.S.C (providing a a 20-year limitation on prosecution on of violations of violations of 18 of U.S.C. 18 U.S.C. 668, 668, prohibiting theft of of major major artwork); 18 U.S.C. 18 U.S.C (providing (providing a ten-year a ten-year limitation on on prosecution of of certain certain non-capital arson arson offenses); offenses); 18 U.S.C. 18 U.S.C (providing a a ten-year limitation on prosecution on of certain of certain non-capital non-capital traffickingrelated offenses). Indeed, in in 2006, 2006, Congress enacted a separate a limitations statute statute for violations of of the the kidnaping statute statute that that involve involve a minor a minor victim. victim. See 18 See U.S.C. 18 U.S.C ( [A]n indictment may may be be found found or an or information an information instituted instituted at any at time any time without limitation for for any any offense offense under under section section involving involving a minor a minor victim. ). victim. ). Absent ex posto facto concerns, these provisions, which which are are clearly clearly procedural, may be applied retroactively. See See United United States States v. Brechtel, v. Brechtel, F.2d F.2d 1108, 1108, (5th Cir.), cert. denied, U.S. U.S (1993); (1993); cf. Stogner cf. Stogner v. California, v. California, U.S. 607, (2003). The The fact fact that that Congress in 1972 in 1972 did not did expressly not expressly change the statute of limitations for for kidnaping, however, however, indicates indicates that Congress that Congress did not intend to to make a a procedural change. Indeed, the legislative history confirms that that Congress s intent intent was was to make to make a number of substantive changes in in the the * * ** kidnaping * law, law, S. Rep. S. Rep. No. 1105, No. trafficking- 1105,

25 -16-92d Cong., 2d Sess. 17 (1972), 5 5not not to to change procedures. The The amendment was was passed as part of legislation aimed at at expanding protection of certain of certain foreign foreign nationals in in the United States. See See Pub. Pub. L. L. No. No , , 86 Stat. 86 Stat Consistent Consistent with that purpose, Congress initially set set out out to restore[] restore[] the death the death penalty penalty for for kidnaping by by correcting the the defect defect in the in the present present provision provision disclosed disclosed in United in United States v. Jackson, 390 U.S. 570 (1968). Letter Letter from from the Secretary the Secretary of State of State and and Attorney General, contained in in S. S. Rep. Rep. No. No. 1105, 1105, 92d 92d Cong., Cong., 2d Sess. 2d Sess. 14 (1972). 14 (1972). Before Congress voted on on final passage of of the the bill, bill, however, however, the Court the Court decided decided Furman v. v. Georgia, U.S. U.S (1972), (1972), which which effectively effectively invalidated invalidated the federal the federal death penalty as it it existed at at that that time. In response, In Congress removed removed the death the death penalty language from the the final final version to to avoid avoid facial facial invalidity. invalidity. 118 Cong. 118 Cong. 6 Rec (Aug. 7, 7, 1972) (statement of of Rep. Rep. Poff). Poff). 6There There is no is evidence no evidence that, that, in in removing that language, Congress intended to to change, or was or was even even aware aware of the of the resulting indirect impact on, on, the the applicable statute statute of limitations of limitations for kidnaping. for kidnaping The Senate Report is is attached hereto as as Exhibit D. D. 6 The cited portion of of the the Congressional Record Record is attached is attached hereto hereto as as Exhibit E. E. 7 The legislative history also also suggests that that Congress felt felt pressure pressure to pass to pass the the bill quickly following the the Munich Munich Massacre Massacre at the at 1972 the Summer 1972 Summer Olympics. Olympics. See See Letter from the the Secretary of of State, contained in S. in Rep. S. Rep. No. No. 1105, 1105, 92d 92d Cong., Cong., 2d 2d (continued...)

26 -17- On the contrary, the fact that that Congress wanted to restore restore capital capital punishment for for kidnaping and expand criminal liability liability under under the statute the statute not only not confirms only confirms that that 8 the amendment s purpose was to to affect substance rather than than procedure, 8butbut undermines any argument that Congress intended to to shorten the the limitations period period for prosecuting violations of of the the statute (...continued) Sess. 15 (1972). 8 Compare Blue Sea Line, 553 F.2d at at (concluding that that statutory statutory amendment was procedural because Congress s singular concern was was to to improve the means of of enforcing existing monetary monetary sanctions sanctions under under the Shipping the Shipping Act ), and Vanella, F.2d F.2d at 386 at 386 (concluding that that amendment amendment to Speedy to Speedy Trial Trial Act was procedural because its its sole sole purpose was was to to affect affect procedure by which by which the the Act, a procedural statute itself, was was enforced), with with United United States States v. Safarini, v. Safarini, F. Supp. 2d 191, 203 (D.D.C. 2003) ( In ( In view view of the of [Act s] the [Act s] creation creation of newof new substantive crimes, * * * it * would it would be a be fiction a fiction to describe to describe the statute the statute as merely as merely procedural. ). 9 The rule that criminal limitations statutes statutes are are to be to liberally liberally interpreted interpreted in favor of repose, Toussie v. v. United States, States, U.S. U.S. 112, 112, (1970), (1970), is inapposite is inapposite here because, as explained above, the 1972 amendment is is not not a limitations a statute. statute. Even the liberal policy in favor in favor of repose of repose can can not overcome not overcome the plain the plain meaning meaning of of an unambiguous statute. United States States v. Bland, v. Bland, F.2d F.2d 1, 5 1, (5th 5 (5th Cir.), Cir.), cert. cert. denied, 409 U.S. 843 (1972). As As set set forth forth above, above, the the plain plain meaning meaning of the of 1972 the 1972 amendment, confirmed by by the the legislative history, history, to is expand to expand criminal criminal liability liability for for federal kidnaping and and also also to to substitute a maximum a penalty penalty of death of death with with a terma term of life imprisonment, not not to change to change the the statute statute of limitations. of

27 Even If Congress Intended To To Change The The Statute Of Of Limitations In In 1972, The Amendment Remains Substantive For For Retroactivity Purposes Under Griffon Even if Congress intended to to change the the statute of of limitations with with its its passage of the 1972 amendment, that change cannot apply retroactively under under this this Court s precedent. In In Griffon, this this Court Court held held that legislation that legislation that affects that affects both both substance and procedure is is substantive for for retroactivity purposes purposes and, and, therefore, therefore, cannot apply retroactively for for any any purpose absent absent express express congressional intent intent to to sever the legislation s substantive and and procedural applications. See 802 See F.2d 802 F.2d at at 155; cf. Friel, F.2d F.2d at at ( It ( It is a is rule a rule of construction of construction that statutes that statutes are are ordinarily given prospective effect. effect. But But when when a statute a statute is addressed is addressed to remedies to remedies or or procedures and does not otherwise alter alter substantive rights, rights, it will it be will applied be applied to to pending cases. (emphasis added)); Vanella, F.2d F.2d at 386 at 386 (explaining that the that the presumption against retroactivity may may not not apply apply to statutory to statutory changes changes that relate that relate only to to procedure or or remedy (emphasis added)). The statute at issue in Griffon was was the the Civil Civil Monetary Monetary Penalties Penalties Law Law (CMPL), U.S.C. 1320a-7a (1983), which which imposes imposes fines fines on individuals on individuals who who submit false Medicare or or Medicaid claims. claims. See See F.2d F.2d at 146. at 146. This Court This Court first first examined the act s text and and legislative history history determine to whether whether CMPL the CMPL was a substantive or procedural statute, and and concluded that that it was it was predominately

28 -19- procedural because most of of the the act s provisions affected procedures and and remedies remedies by providing a a civil, administrative alternative alternative to the to criminal the criminal prosecution prosecution of falseof false claims. See id. id. at at 151. The The Court Court noted, noted, however, however, that that the CMPL the CMPL also enlarged also enlarged the scope of substantive liability, allowing prosecution for the for first the time first of time people of people who had reason to to know that that their their claims claims were were not not provided provided for. for. Ibid. Because Ibid. Because there was no evidence that Congress intended that that the the CMPL CMPL be applied be applied retroactively, or or that that it be it be severed to to avoid avoid the the constitutional issues issues that would that would arise from retroactive application of the of the statute s statute s substantive provisions, provisions, this Court this Court held that the CMPL was was a a substantive statute for for retroactivity purposes, purposes, and that and ithat it could not be applied partially on on a retroactive a basis. basis. See See id. at id at In so holding, this this Court invalidated a regulation a promulgated by theby the Secretary of the Department of of Health and and Human Services (HHS) (HHS) that that permitted permitted retroactive application of of the the CMPL s procedural provisions. provisions. See Griffon, See Griffon, F.2d at This This Court Court explained: Because Congress has failed to to provide adequate indicators of of its intent regarding retroactivity, severability, or the or nature the nature of theof the CMPL, regulatory severance of of the the procedural and and substantive Compare Bernstein v. v. Sullivan, F.2d F.2d 1395, 1395, (10th (10th Cir. Cir. 1990) (concluding that that a 1987 a 1987 amendment to the to the CMPL, CMPL, which which expressly expressly extended the statute of of limitations for for false false claims claims to six to years, six years, and and which which expressly applied to to proceedings commenced after after the the amendment s effective effective date, date, governed a post-amendment proceeding based on on pre-amendment conduct).

29 -20- provisions creates congressional intent out out of whole of whole cloth. cloth. The The Secretary initially purports to to infer infer a general a general retroactive intent intent of of Congress, by characterizing the the statute as as procedural. She She then then attributes congressional cognizance of of the the inferred Due Due Process Process concerns raised by the first and and second canons to to subsequently infer infer that Congress would sever the the statute, rather than than apply apply it it prospectively. Such bootstrapping by by progressively linked linked inferences is is beyond the reach of any reasonable, interpretive powers. Although Although the power of an an administrator to to interpret the the sources sources of her of authority her authority in order to to effect congressional purposes is extremely is broad, broad, she she cannot fictitiously create purposes to to achieve specific specific results. results. Some Some degree of interpretive contortion has has a therapeutic a effect effect on the on law; the law; too much contortion has has a a crippling effect. effect. The The Secretary Secretary here here cannot cannot simply fabricate a a congressional intent intent to avoid to avoid concerns concerns that that otherwise would require inferred prospective application of a statute. of a statute. We therefore nullify this this administrative usurpation usurpation of the of legislative the legislative prerogative to to think clearly or or not not at all. at all. Id. at 147. Similarly, here, to to conclude that that the the kidnaping amendment applies applies retroactively for for statute-of-limitations purposes purposes only only would would be to be create[] to create[] congressional intent out out of of whole cloth cloth based based upon upon progressively linked linked inferences and fictitiously create[d] create[d] purposes purposes to achieve to achieve specific specific results. results. Griffon, 802 F.2d at at As As in Griffon, in Griffon, there there is no is basis no basis to conclude to conclude that that Congress intended to to treat the the changes in in U.S.C one one way way and and the the resulting change in in the the applicable statute of of limitations another another way. way. Congress Congress is is presumed to have understood that its its creation of of new new crimes crimes and and other other substantive

30 -21- changes in the kidnaping statute could apply apply prospectively only. only. Consequently, Consequently, it it is also presumed to have understood that that any any changes to to remedies or or procedures effected by the 1972 amendment could also also apply apply prospectively only. only. In fact, the case against retroactive application is even is even stronger stronger here here than than in in Griffon. Unlike the the CMPL, CMPL, the 1972 the 1972 kidnaping kidnaping amendment amendment contained contained no no provisions that were expressly procedural. Moreover, the purpose the purpose of theof the amendment was predominately substantive, given given Congress s clear clear and and unequivocal intent to to expand criminal liability liability for certain for certain kidnapings. kidnapings. Finally, Finally, unlike in in Griffon, this this Court Court need need not not apply apply a deferential a deferential standard standard of review of review to the to the interpretation advocated by by the the defendant. Compare F.2d F.2d at 148 at 148 (applying (applying Chevron deference to to the the Secretary s interpretation of the of the CMPL). CMPL). Accordingly, Accordingly, under Griffon, the the 1972 amendment is substantive is legislation that that applies applies prospectively only for for all all purposes See also, e.g., Landgraf, 511 U.S. at at , (concluding that that the the procedural right to to a a jury jury trial trial under under an employment an discrimination statute, statute, which which accompanied a new substantive right to to recover damages, could could not not apply apply retroactively because the the right to to recover damages applied applied prospectively and and because Congress had not expressed a contrary intent); Safarini, F. Supp. F. Supp. 2d 2d at 201 (relying on on Landgraf to hold to hold that, that, in the in absence the absence of clear of clear congressional intent, the procedural provisions of of the the federal federal death death penalty penalty law could law could not not apply retroactively where the the law law also also created created new new crimes crimes that that constitutionally could operate on a prospective basis only).

31 This Court Should Reject Reliance On On Provenzano Because That That Case Was Wrongly Decided The reliance of of the the defendant (Br. (Br ) and and the the panel panel (Slip (Slip Op. Op. 9-10, 9-10, ) on United States v. v. Provenzano, F. F. Supp. Supp (S.D.N.Y. 1976), 1976), aff d, aff d, F.2d 562 (2d Cir. 1977) (unpublished table table decision), should should be rejected. be rejected. The The district court in in Provenzano held held that that the the amendment retroactively shortened shortened the limitations period applicable to pre-amendment to violations violations of the of kidnaping the kidnaping statute, thus barring prosecution of of defendants in that in that case case for for their their conduct. conduct. See 423 F. Supp. at 669. The The court concluded that that the the amendment was was procedural rather than substantive because statutes of of limitation * * * are * * not are considered not considered substantive, and and because the the direct direct effect effect of the of the [amendment s] repeal repeal [of the[of the death penalty] is is to to terminate the the applicability of 18 of U.S.C. 18 U.S.C. 3281, 3281, the no the limit no limit statute of limitations. Ibid. Ibid. In so In concluding, so concluding, the court the ignored court ignored the first the rule first of rule of statutory interpretation that that establishes a presumption a against against retroactivity and and also failed to to examine the the amendment s text text and and legislative history history for evidence for evidence of of congressional intent to to change the the statute of of limitations. Had Had the Provenzano the Provenzano court engaged in the correct analysis, applying the the rules rules as this as this Court Court did in did in Griffon, it it would have have concluded that that the the amendment was was a substantive a substantive statute that applies prospectively for for all all purposes.

32 -23- Indeed, consistent with this this Court s approach in Griffon, in Griffon, the court the court in United in United States v. Owens, 965 F. F. Supp. 158, n.6 n.6 (D. (D. Mass. Mass. 1997), 1997), properly properly rejected rejected Provenzano s holding to to conclude that that a change a change in penalty in penalty does does not retroactively not change the applicable statute of of limitations. In Owens, In Owens, the court the court considered considered the the 1994 Violent Crime Act, Act, Pub. Pub. L. No. L. No , , 60003(a)(11), (12), (12), (2)(c), (c), 108 Stat. 1796, which amended the the murder and and murder-for-hire statutes by increasing the maximum penalty from from a term a term of life of imprisonment life to to death, making them capital. See See F. F. Supp. Supp. at 162. at 162. As a As result, a result, the applicable the applicable statutes of limitations also also changed. See See ibid. ibid. (citing (citing 18 U.S.C. 18 U.S.C. 3281). 3281). Like the Like the 1972 amendment to to the kidnaping statute, however, the the Act Act did not did expressly not expressly change the limitations period for for previously committed committed offenses offenses still subject still subject to to prosecution. See See id. id. at at Rather, Rather, it changed it changed the the punishment, thereby thereby only only indirectly implicating the the applicable statute statute of limitations. of limitations. Ibid. The Ibid. court The noted court noted that Congress fully understood that that the the added added punishment constitutionally could could operate only prospectively, ibid. ibid. (citations omitted), omitted), and therefore and therefore concluded concluded that, that, absent a contrary expression of of Congressional intent, intent, the the same same holds holds true true for the for the statute s indirect impact on on the the statute of of limitations, id. at id at 165. The court then examined the the legislative history history and and found found not not a scintilla a scintilla of of evidence * * * * suggesting that that Congress intended that that there there be no be limitation no limitation period period

33 -24- for murder and murder for for hire hire offenses committed prior prior to September, to September, Owens, 965 F. Supp. at at 165. To To the the contrary, the the enactment of what of what is nothing is nothing more than a sentencing statute, without any any reference to the to the statute statute of limitations, of is a strong indicator that that Congress intended to remove to remove the the limitations period period only only as to crimes covered by by the the enhanced sentencing scheme, i.e., i.e., crimes committed after the effective date date of of the the Violent Crime Crime Act. Act. Ibid. (emphasis Ibid. (emphasis partially partially added). In In a a footnote, the the court court rejected Provenzano s contrary contrary holding, holding, explaining that, [a]bsent a clear a clear Congressional intent intent to change to change the statute the statute of of limitations, courts apply the the statute that that was was in effect in effect at the at time the time of theof the offense even offense-even if if the the potential penalty penalty is subsequently is changed. changed. Id. at Id. n.6. at Owens, n.6. Owens, therefore, not Provenzano, is is consistent with with this this Court s Court s precedent, precedent, and thus and thus provides persuasive authority for for concluding that that the the amendment does does not not apply retroactively for for statute-of-limitations purposes. purposes The court in in Owens assumed for for purposes of of deciding the the defendant s motion to to dismiss that that the the limitations period period that that governed governed his conduct his conduct had not had not expired when Congress amended the the murder and and murder-for-hire statutes statutes in in See 965 F. Supp. at 164. Because Congress may may constitutionally extend extend an an unexpired statute of of limitations without without running running afoul afoul of the of Ex the Post Ex Facto Post Facto Clause, Clause, the Owens court focused solely on on principles of statutory of statutory interpretation to to determine whether the Act Act could apply apply retroactively for statute-of-limitations for purposes. See ibid. For For all all the the reasons reasons set set forth forth in Owens, in Owens, the 1994 the 1994 Act, which Act, which also restored capital punishment for for kidnaping, see see Pub. Pub. L. No. L. No , , 60003(a)(6), 108 Stat. 1969, did did not not retroactively affect affect the statute the statute of limitations of limitations (continued...)

34 Because The 1972 Amendment Does Not Apply Retroactively, The The Saving Clause Preserves The 1964 Version Of Of The The Kidnaping Statute Statute For Purposes Of Of This Prosecution Because the 1972 amendment does not apply retroactively for for any any purpose, purpose, the defendant was properly prosecuted under the the version version of the of the kidnaping kidnaping statute, pursuant to the general saving clause, 1 U.S.C Congress Congress enacted enacted the the saving clause to address precisely this this situation. The The common common law recognized law recognized a a presumption that repeals and re-enactments of of criminal statutes statutes abated abated all all prosecutions that had not reached final disposition. See See Blue Blue Sea Sea Line, Line, 553 F.2d 553 F.2d at at 447. Because the Ex Ex Post Facto Clause barred barred retroactive application of of amendments increasing criminal penalties, individuals who who violated violated the law the before law before it was amended could, as as a a result of of abatement and and legislative inadvertence, avoid avoid prosecution. See See ibid. Congress, therefore, enacted enacted the the saving saving clause clause to eliminate to eliminate such pitfalls. Ibid. Ibid. The The saving saving clause clause provides: provides: The repeal of any statute shall not not have have the the effect effect to release to release or or extinguish any penalty, forfeiture, or liability or liability incurred incurred under under such such statute, unless the repealing Act shall shall so so expressly provide, and and such such statute shall be treated as as still remaining in in force force for the the purpose purpose of of sustaining any proper action or or prosecution for for the the enforcement of of such penalty, forfeiture, or or liability. 1 U.S.C As As already explained, Congress did did not not express express its intent its intent to apply to apply 12 (...continued) applicable in in this case, either.

35 -26- the 1972 amendment retroactively; nor nor did did it express it express its intent its intent to extinguish to extinguish liability under the the federal kidnaping statute statute for pre-1972 for pre-1972 conduct. conduct. Accordingly, Accordingly, the saving clause permits prosecution of of the the defendant under under the the law law in effect in effect at at the time of the offense, which includes the the version version of 18 of U.S.C. 18 U.S.C. 1201, 1201, as as governed by 18 U.S.C The defendant s argument (Br. (Br ), and and the the panel s panel s conclusion (Slip (Slip Op. Op ), that the saving clause does not not apply apply in this in this case case must must be rejected be rejected because because it is premised upon the the incorrect conclusion that that the the amendment is not is anot a substantive amendment. The The defendant and and the the panel panel consider only only the the amendment s repeal of of the the death penalty, ignoring the the amendment s other other substantive changes, and conclude that that such provision did did not not substantively change the kidnaping statute because the the death penalty was was unenforceable following the the Supreme Court s decision decision in Jackson. in Jackson. Under Under Griffon, Griffon, of of course, the amendment must be be construed in in its its entirety to determine to whether whether it is it is substantive or procedural. But But even even considering the penalty the penalty provision provision alone, alone, the the argument that the change in in punishment was was not not a substantive a change change lacks lacks merit merit for two reasons. First, it it is is well-settled that that the the saving saving clause clause saves saves repealed penalties, including criminal sentencing laws laws repealing repealing harsher harsher ones ones in force in force at the at time the of time of

36 -27- the commission of of an an offense. Warden, Lewisburg Penitentiary Penitentiary v. Marrero, v. Marrero, U.S. 653, 661 (1974); accord Blue Blue Sea Sea Line, Line, F.2d F.2d at 448. at 448. The The amendment s substitution of of a a maximum penalty of death of death with with a term a term of life of imprisonment life imprisonment thus thus falls plainly and and clearly within within the the scope scope of the of saving the saving clause. clause. Second, to determine whether the the amendment substantively affected affected the the maximum penalty for for kidnaping, the the amendment must must be compared be compared to the to law the in law in effect at the time of of the the offense, not not to to the the maximum penalty penalty that that was was constitutionally available after after Jackson. See See Dobbert Dobbert v. Florida, v. Florida, 432 U.S , U.S. 282, (1977) (comparing new new death death penalty statute statute with with death death penalty penalty statute statute in in effect at the time of of the the offense, but but which which was was subsequently invalidated invalidated and held and held unenforceable, to to conclude that that new new statute did did not not substantively increase increase punishment); accord Smith v. v. Johnson, F. F. Supp. Supp. 289, 289, (E.D. (E.D. La. 1977), La. 1977), aff d, 584 F.2d (5th (5th Cir. Cir. 1978). 1978). A comparison A comparison of the of 1972 the 1972 amendment amendment with with the kidnaping statute in in effect in in clearly clearly shows shows a substantive a change change in thein the maximum punishment authorized by by Congress. Accordingly, the the saving clause preserves the the death death penalty penalty provision provision in thein the 1964 version of of U.S.C. 1201, for for purposes of applying of applying 18 U.S.C. 18 U.S.C See De See De La Rama S.S. Co. v. United States, U.S. U.S. 386, 386, (1953) (1953) ( By ( By the General the General Savings Statute Congress did not not merely save save from from extinction a liability a liability incurred incurred

37 -28- under the repealed statute; it it saved the the statute itself. ); see see also also Dobbert, Dobbert, U.S. U.S. at 298 ( The actual existence of of a statute, a prior prior to such to such a determination a [that [that it is it is unconstitutional], is is an an operative fact, fact, and and may may have have consequences which which cannot cannot justly be ignored. (citation omitted)) D. Kidnaping Kidnaping Remained Remained A Capital A Capital Offense Offense For Statute-Of-Limitations For Purposes After Jackson The Supreme Court s decision in in Jackson did did not not reclassify kidnaping kidnaping as a as a non-capital offense for for purposes of of applying 18 U.S.C. 18 U.S.C Every Every court court of of appeals to address this issue has concluded that judicial invalidation of the of death the death penalty has no effect on on the the applicable statute of of limitations. 1. The Court In In Jackson Invalidated The The Death Death Penalty Penalty For For Kidnaping Kidnaping But Did Not Change The The Statute s Basic Basic Operation In 1968, the Supreme Court decided Jackson, which which invalidated the death the death penalty provision of of the the federal kidnaping statute. statute. The The Court Court held that held the that the provision, which authorized only only a jury a jury to recommend to punishment punishment by death, by death, was was unconstitutional because it it discouraged assertion of the of the Fifth Fifth and and Sixth Sixth 13 The defendant (Br ) and and panel (Slip (Slip Op. Op ) 11-12) both both point point out that out that the saving clause cannot save repealed statutes of of limitations, but but that that is not is the not the position urged here. The The applicable statute statute of limitations of in this in case, this case, 18 U.S.C. 18 U.S.C. 3281, has not been repealed. Rather, the the saving clause clause preserves the the substantive law in effect at at the the time time of of the the offense, U.S.C. U.S.C (1964), (1964), which which triggers triggers application of of U.S.C

38 -29- Amendment rights to to trial trial by by jury. jury. See See Jackson, Jackson, U.S. U.S. at at Rather Rather than than striking down the the entire statute, the the Court Court concluded that that the the clause clause authorizing authorizing capital punishment [was] severable from from the the remainder of the of kidnaping the kidnaping statute statute and that the unconstitutionality of that of that clause clause does does not not require require the defeat the defeat of the of law the law as a whole. Id. Id. at at The The Court Court explained explained that the that death the death penalty s penalty s elimination elimination in no way alters the the substantive reach of of the the statute statute and and leaves leaves completely unchanged its basic operation. Ibid. Ibid. The Court made clear that the the only only impact its its decision decision had had was was that that capital capital punishment could no no longer be be imposed for for violations of the of kidnaping the kidnaping statute; statute; everything else remained the the same: Thus the infirmity of of the the death death penalty penalty clause clause does does not not require require the the total frustration of of Congress basic basic purpose-that purpose that of making of making interstate interstate kidnaping a a federal crime. By By holding holding the death the death penalty penalty clause clause of theof the Federal Kidnaping Act Act unenforceable, we we leave leave the the statute statute an an operative whole, free of of any any constitutional objection. The appellees The appellees may be prosecuted for violating the the Act, Act, but but they they cannot cannot be put be to put to death under its authority. Jackson, 390 U.S. at at 591. The Court s narrow holding was was clearly clearly guided guided by separation-of-powers by 14 concerns and principles of of judicial restraint. 1 In severing In severing the death the death penalty4 penalty 14 The question whether the the Supreme Court lacks lacks constitutional authority authority based upon separation of powers to to transform a capital a capital crime crime into into a non-capital a non-capital (continued...)

39 -30- provision from the the rest rest of of the the statute, the the Court Court explained that, that, [u]nless [u]nless it is it is evident that the legislature would not not have have enacted enacted those those provisions which which are are within its its power, independently of that of that which which is not, is the not, invalid the invalid part may part bemay be dropped if if what is is left left is is fully fully operative operative as law. as law. Jackson, Jackson, 390 U.S. 390 at U.S. 585at 585 (citation omitted). The The Court Court reviewed reviewed the statute s the statute s legislative legislative history history and found and found it quite inconceivable that that the the Congress which which decided decided to authorize to authorize capital capital punishment in in aggravated kidnaping cases cases would would have have chosen chosen to discard to discard the entire the entire statute if informed that that it could it could not not include include the death the death penalty penalty clause clause now before now before us. Id. Id. at at Consistent with with the limits the limits on judicial on judicial power power under the under the Constitution, the the Court opted opted to to leave leave the the statute statute an operative an operative whole whole in order in order to to avoid total frustration of of Congress basic basic purpose. purpose. Id. at Id at Judicial Invalidation Of Of The The Death Death Penalty Penalty Has Has No Effect No Effect On The On The Applicable Statute Of Of Limitations Soon after the Supreme Court decided Jackson, the the Eighth Eighth Circuit Circuit 14 (...continued) crime for all all purposes was was not not raised below below by by either either party; party; nor was nor was it briefed it briefed on on appeal or addressed by the panel. Although the the separation-of-powers issue issue is somewhat related to, and perhaps a a sub-issue of, of, Jackson s effect effect on the on statute the statute of limitations (an (an issue that that the the panel panel did did not not address), it is it not is preserved not preserved for enfor en banc consideration, despite this this Court s request for for briefing. briefing. See United See United States States v. v. Brace, 145 F.3d 247, (5th (5th Cir.) Cir.) (en (en banc), banc), cert. cert. denied, denied, U.S. U.S (1998). Nonetheless, as as explained above, separation-of-powers principles principles clearly clearly guided the Court s decision in in Jackson.

40 -31- considered what effect, if if any, any, that that decision had had on the on the statute statute of limitations. of limitations. See See United States v. v. Coon, F.2d F.2d 422, 422, (8th (8th Cir. Cir. 1969). 1969). The court The court concluded that Jackson did did not not affect the the statute statute of limitations, of explaining: explaining: [T]he scope of of the the Jackson decision is is limited limited to the to the constitutional infirmities attending imposition of the of the death death penalty. penalty. Here Here we arewe are concerned not with a a constitutional issue, issue, but but with with the statute the statute of of limitations. Generally speaking, limitation limitation of the of time the for time for commencing the prosecution of of a criminal a charge charge is purely is purely a matter a matter of of statute. Thus in in deciding which which limitation is applicable, is applicable, we must we look must look directly to to the the statute. And And in interpreting the statute the statute of limitations, of limitations, the statute must be considered in in light of of the the situation as it as existed it existed and presumably was known to to Congress at at the the time time of the of the passage passage of of the statute. Id. at 425 (internal quotation marks marks and and citations omitted). omitted). The court The court thus thus concluded that U.S.C. 3281, not not U.S.C. U.S.C. 3282, 3282, was was the the controlling statute statute of of limitations because [t]o hold hold otherwise would would be to be give to give a perverted a perverted reading reading to to the statutory scheme in in existence at at all all pertinent times. times. Ibid. Ibid. Three years later, the Supreme Court decided Furman, which which held held that that imposition of of the the death penalty in two in two rape rape cases cases and and a murder a murder case case from from Georgia Georgia and Texas constitute[d] cruel cruel and and unusual punishment in violation in violation of the of Eighth the Eighth and Fourteenth Amendments U.S. U.S. at 240. at 240. As this As Court this Court has recognized, has recognized, Furman effectively voided the the federal federal death death penalty penalty as it as existed it existed at that time. that time. See See United States v. v. Kaiser, F.2d F.2d 467, 467, (5th (5th Cir. Cir. 1977). 1977).

41 -32- Since then, courts of of appeals have unanimously held, held, as as the the Eighth Eighth Circuit Circuit did after Jackson, that judicial invalidation of the of death the death penalty penalty does does not change not change the statute of limitations applicable to capital to capital cases. cases. See See United United States States v. v. Manning, F.3d 1188, (9th (9th Cir. Cir. 1995); 1995); United United States States v. Edwards, v. Edwards, 159 F.3d 159 F.3d 1117, 1128 (8th Cir. 1998), cert. cert. denied, U.S. U.S (1999); (1999); United United States States v. v. Ealy, 363 F.3d 292, (4th (4th Cir.), Cir.), cert. cert. denied, denied, U.S. U.S (2004); (2004); Willenbring v. v. Neurauter, M.J. M.J. 152, 152, (C.A.A.F. (C.A.A.F. 1998). 1998). This is This because is because statutes of limitations derive their their justification from from the serious the serious nature nature of the of the crime rather than from a a concern about, for for example, what what procedural protections protections those who face a penalty as as grave as as death are are to to receive. Manning, 56 F.3d 56 F.3d at at 1196; accord Edwards, F.3d F.3d at at Consequently, offenses punishable by by death death are are still still considered capital capital crimes for statute-of-limitations purposes, even even if the if death the death penalty penalty is is unenforceable. See, e.g., Ealy, F.3d F.3d at at (affirming district district court court holding that the limitations period period depends depends on the on capital the capital nature nature of the of crime, the crime, and and not on whether the death penalty is is in in fact fact available for defendants for in a particular in a particular case ); see also United States v. v. Martinez, F. Supp. F. Supp. 2d 2d 1024, 1024, (D.N.M. (D.N.M. 2007) (distinguishing capital sentence from from capital capital offense offense to conclude to conclude that that offense punishable by by death is capital is capital for for statute-of-limitations purposes purposes despite despite

42 -33- law prohibiting enforcement of the of the death death penalty penalty in Indian in Indian Country), Country), appeal appeal dismissed, 272 F. F. App x (10th (10th Cir. Cir. 2008). 2008). Accordingly, Accordingly, an offense an offense that is that is punishable by by death remains subject to no to no limitation on prosecution on prosecution under under U.S.C. 3281, even if if the the death penalty cannot be be imposed, because because that that statute statute reflects Congress s judgment that that some some crimes crimes are are so so serious serious that that an offender an offender should always be be punished if if caught. Manning, Manning, 56 F.3d 56 F.3d at 1196; at 1196; accord accord Willenbring, M.J. M.J. at at Offenses punishable by by death are are also also considered capital capital offenses offenses for for purposes of applying other statutes tied tied to to the the serious serious nature nature of capital of capital crimes, crimes, even if the death penalty is is unavailable. See, See, e.g., e.g., United United States States v. Kennedy, v. Kennedy, F.2d 557, 559 (9th Cir. Cir. 1980) (upholding applicability 18 U.S.C. 18 U.S.C. 3148, 3148, which which allows a court to to deny bail bail in in capital capital cases cases if the if the defendant poses poses a danger a danger to to others because [t]he reasons for for allowing a court a court to consider to consider the dangerousness the of of the defendant exist regardless of of whether the the death death penalty can can be be imposed ); United States v. v. Kostadinov, F.2d F.2d 411, 411, (2d (2d Cir. Cir. 1983) 1983) (same); (same); United United States v. Watson, 496 F.2d 1125, 1128 (4th (4th Cir. Cir. 1973) 1973) (upholding applicability applicability of of 18 U.S.C because the court was was unable to to say, say, absent absent a clear a clear legislative expression, that the possibility of of imposition of the of death the death penalty penalty was the was sole the sole reason why Congress gave an an accused the right to to two two attorneys ); see see also also Smith Smith

43 -34- v. Johnson, 584 F.2d 758 (5th (5th Cir. Cir. 1978) 1978) (per (per curiam) curiam) (concluding that district that district court correctly upheld applicability of Louisiana of Louisiana statute statute requiring requiring certain certain juveniles juveniles charged with capital crimes to to be be treated as as adults, even even though though the the death death penalty penalty was subsequently held unconstitutional), aff g aff g F. Supp. F. Supp (E.D. (E.D. La. 1977). La. 1977). 15 By contrast, where statutes and rules applicable to to capital capital cases cases are are designed to protect defendants from an an erroneous death death sentence, there there is no is no reason reason to apply to apply them when there is is no no possibility that that the the defendant can can actually actually be put be to put death. to death. See United States v. Steel, 759 F.2d 706, (9th (9th Cir. Cir. 1985) 1985) (explaining that that protections for capital defendants do do not not apply apply where where the the death death penalty penalty is not is not available because their purpose derives from from the the severity severity of the of punishment the rather rather than from the nature of of the the offense ). Thus, Thus, in United in United States States v. Hoyt, v. Hoyt, 451 F.2d 451 F.2d As set forth above, an an offense remains capital for for statute-of-limitations purposes regardless of whether its its death penalty provision is held is held to violate to violate the the Fifth and Sixth Amendments, as as in in Jackson, or the or the Eighth Eighth Amendment, as inas in Furman. See, e.g., Willenbring, M.J. M.J. at at (concluding (concluding that rape that case rape case was capital for for statute-of-limitations purposes purposes even even though though imposition imposition of the of the death penalty for rape would be be unconstitutional under under the Eighth the Eighth Amendment). This is because statutes of limitations are are tied tied to the to the nature nature of the of the offense, offense, not to not to the severity of of the the punishment. In both In both instances, however, however, courts courts have have recognized the separation-of-powers issues that that would would arise arise if they if they invalidated invalidated all all statutes and rules tied to to the the nature of of a capital a case, case, simply because because the the death death penalty could not be be constitutionally imposed. In a In post-furman a post-furman murder murder case, for case, for example, the Fourth Circuit upheld the the continued classification of murder of murder as a as a capital offense for for purposes of of applying U.S.C. U.S.C. 3005, 3005, explaining explaining that [c]ourts that [c]ourts are very naturally hesitant about drawing solely solely upon upon their their own own authority authority to repeal to repeal pro tanto Congressional enactments. Watson, F.2d F.2d at at 1128.

44 , 571 (5th Cir. 1971) (per (per curiam), cert. cert. denied, denied, U.S. U.S (1972), (1972), this this Court treated a post-jackson kidnaping case case as as non-capital for for purposes purposes of of applying Federal Rule of of Criminal Procedure 24(b), 24(b), which which provides provides twenty twenty peremptory challenges to to defendants charged with with a crime a crime punishable by death, by death, and 18 U.S.C. 3432, which requires the the prosecution to turn to turn over over witness witness and jury and jury lists to capital defendants before trial. trial. Relying Relying on Hoyt, on Hoyt, this Court this Court again again held that held that 18 U.S.C was inapplicable in in a post-furman a murder murder case. case. See See Kaiser, Kaiser, F.2d at 475 (Where the capital punishment provision of [the of federal [the federal murder murder statute] is unconstitutional and and void, void, * * * the * * strict the strict procedural procedural guarantees guarantees of of 3432 were not properly applicable to this to this trial. ). trial. ). Contrary to to the defendant s argument (Br. (Br ), 21-23), therefore, therefore, Hoyt Hoyt and and Kaiser are entirely consistent with with the the treatment of this of this case case a as capital a capital case case for for statute-of-limitations purposes. Indeed, Indeed, the the same same circuits circuits that that have have upheld upheld the the continued applicability of of U.S.C. U.S.C to cases to cases charging charging offenses offenses punishable punishable by death after Jackson and and Furman have have also also held held such such cases cases to be to be non-capital for purposes of of applying Rule Rule 24(b) 24(b) and and U.S.C. U.S.C See, See, e.g., e.g., United United States States v. McNally, F.2d F.2d 398, 398, (8th (8th Cir. Cir. 1973) 1973) (concluding that case that charging case charging defendant with hijacking offense, for for which which Congress Congress authorized authorized the death the death penalty, lost its its capital nature after after Furman for for purposes purposes of applying of applying Rule Rule 24(b)), 24(b)),

45 -36- cert. denied, 415 U.S. 978 (1974); United States States v. Goseyun, v F.2d F.2d 1386, 1386, (9th Cir. 1986) (relying on on Hoyt Hoyt and and McNally McNally to deny to deny defendant defendant in post-furman in post-furman murder case benefit of of Rule 24(b) because that that rule rule is is tied tied to the to penalty the penalty formerly formerly possible ); Steel, 759 F.2d at at (relying in part in part on Kaiser on Kaiser to conclude to conclude that that invalidation of of the the death penalty also also invalidates the the right right to a witness to a witness list under list under 18 U.S.C because the purpose of of the the witness list list right right is to is reduce to reduce the the chance that an innocent defendant would be be put put to death to death by by providing a pretrial a pretrial safeguard not available in in nonpcapital criminal prosecutions ). Hoyt and Kaiser are are also consistent with with the the approach this this Court Court and and other other courts follow when the the death death penalty is constitutionally is available, available, but the but the government has agreed not to to seek it. it. See See United States States v. Crowell, v. Crowell, F.2d F.2d 324, 324, 325 (5th Cir. 1974) (concluding that that district district court court did not did err not in err refusing refusing to apply to apply Rule 24(b) and U.S.C in in case case charging capital capital offense offense where where there there was was an agreement prior to to trial not not to to seek seek the the death death penalty); accord accord Hall Hall v. United v. United States, 410 F.2d 653, (4th (4th Cir.), Cir.), cert. cert. denied, denied, U.S. U.S (1969); (1969); United United States v. Maestas, 523 F.2d 316, (10th Cir. Cir. 1975); 1975); United United States States v. Grimes, v. Grimes, 142 F.3d 1342, 1347 (11th Cir. Cir. 1998), 1998), cert. cert. denied, denied, U.S. U.S (1999). (1999). By By contrast, cases in which the the death penalty is is available but but has has been been waived waived are are still still considered capital cases for statute-of-limitations purposes. See, See, e.g., e.g., United United

46 -37- States v. Johnson, 270 F. F. Supp. 2d 2d 1060, (N.D. (N.D. Iowa Iowa 2003) 2003) ( [T]he ( [T]he government s decision not not to to seek seek the the death death penalty, even even though though capital capital offenses are charged in in the the indictment, does does not not amount amount to a to reduction a reduction of the of the offenses, for statute of of limitations purposes, to non-capital to offenses offenses subject subject to a to a five-year statute of of limitations. ). In sum, the prosecution of of the the defendant in in for for his 1964 his 1964 conduct conduct under under the law in effect at at the the time time of of his his offense offense was was not not time-barred because because neither neither the 1972 amendment, nor the Supreme Court s decision in Jackson, in Jackson, retroactively shortened the limitations period that that Congress authorized for violations for violations of theof the kidnaping statute where, as as here, the the victims were were not not liberated liberated unharmed.

47 -38- CONCLUSION For the foregoing reasons, this this Court should affirm affirm the defendant s the conviction. Respectfully submitted, LORETTA KING Acting Assistant Attorney General JESSICA DUNSAY SILVER TOVAH R. R. CALDERON Attorneys Department of of Justice Civil Rights Division Appellate Section Ben Franklin Station P.O. Box Washington, DC (202)

48 CERTIFICATE OF OF SERVICE SERVICE I hereby certify that that on on April April 16, 16, 2009, 2009, two two copies copies and and one diskette one diskette containing an an electronic copy copy of of the the foregoing EN EN BANC BANC BRIEF BRIEF FOR THE FOR THE UNITED STATES AS AS APPELLEE were were served served by overnight by overnight carrier carrier on theon the following counsel of of record: Kathryn Neal Nester, Esq. George Lowery Lucas, Esq. Federal Public Defender s Office Southern District of of Mississippi 200 South Lamar Street Suite 200-N Jackson, MS TOVAH R. R. CALDERON Attorney

49 FORM 6. CERTIFICATE OF COMPLIANCE OF COMPLIANCE WITH RULE WITH 32(a) RULE 32(a) Certificate of Compliance of Compliance with Type-Volume with Type-Volume Limitation, Limitation, Typeface Requirements, and Type and Style Type Requirements Style Requirements 1. This This brief brief complies complies with the type-volume with the limitation type-volume of limitation of FED. R. APP. P. P. 32(a)(7)(B) because: because:! this this brief brief contains contains 8,668 words, 8,668 excluding words, the excluding the parts of of the brief the exempted brief exempted by FED. R. by APP. FED. P. R. APP. P. 32(a)(7)(B)(iii), or or G this brief brief uses a uses monospaced a monospaced typeface and typeface and contains [state [state the number the number of] lines of of] text, lines of text, excluding the the parts parts of the brief of exempted the brief by FED. exempted by FED. R. APP. P. P. 32(a)(7)(B)(iii). 2. This This brief brief complies complies with the typeface with the requirements typeface of requirements of FED. R. APP. P. P. 32(a)(5) 32(a)(5) and the and type the style type requirements style of requirements FED. of FED. R. APP. P. P. 32(a)(6) because: because:! this this brief brief has been has prepared been prepared in a proportionally in a proportionally spaced typeface using using WordPerfect WordPerfect 12.0 in 12.0 in Times New Roman, 14-point font, or font, or G this brief brief has been has prepared been prepared in a monospaced in a monospaced typeface using using [state [state name and name version and of version word of word processing program] program] with [state with number [state of number of characters per per inch and inch name and of name type style]. of type style]. (s) Attorney for: for: United States United of America States of America Dated: April April 16, , 2009 Document hosted at

50 ADDENDUM

51 EXHIBIT AA

52 United States Court of Appeals States Court of Appeals FIFTH CIRCUIT OFFICE OF THE CLERK CHARLES R R.. FULBRUGE III TEL CLERK 600 S. S. MAESTRI M PLACE NEW ORLEANS,, LA LA November 19, 19, MEMORANDUM TO TO COUNSEL OR OR PARTIES LISTED BELOW: No USA USA v. Seale v. Seale USDC No. 3:07-CR Dear Counsel: Although the the entire entire case on case appeal on is before appeal the is en before banc court, the en banc court, counsel are are well-advised to limit their to briefing limit and their oral briefing and oral argument exclusively or primarily or primarily to the issue addressed to the issue by the addressed by the panel. The The issue issue raised for raised reconsideration for reconsideration en banc is whether en banc is whether the change in the in statute the statute of limitations of for limitations the federal for the federal kidnaping statute, statute, which was which effected was by effected the 1972 amendment by the 1972 to amendment to the federal kidnaping kidnaping statute, applies statute, retroactively applies to Seale's retroactively to Seale's conduct. Sincerely, CHARLES R. FULBRUGE III, Clerk Clerk Ms Kathryn Neal Neal Nester Nester Ms Tovah R R Calderon By: Geralyn Maher Maher Calendar Clerk Clerk

53 EXHIBIT BB

54 United States Court of Appeals States Court of Appeals FIFTH CIRCUIT OFFICE OF THE CLERK CHARLES R R.. FULBRUGE III TEL CLERK 600 S. S. MAESTRI M PLACE NEW ORLEANS,, LA LA February 10, 10, Ms Tovah R R Calderon US Department of Justice of Justice Civil Rights Rights Div - Appellate Div - Appellate Section Section PO Box Washington, DC DC No USA USA v. Seale v. Seale Dear Ms Calderon: At least one one judge judge requests requests that appellee s that counsel appellee s brief counsel brief the separation-of-powers question question in this case. in That this is, case. That is, address: (1) (1) whether whether Supreme the Supreme Court lacks Court constitutional lacks constitutional authority to transform to transform a capital crime a capital into a non-capital crime into a non-capital crime for for all purposes all purposes when Congress when Congress has exercised has itsexercised its constitutional prerogative prerogative to classify the to crime classify capital the crime as capital and that classification is consonant is with consonant the Eighthwith the Eighth Amendment; and and (2) (2) whether, whether, consequently, consequently, federal kidnaping federal kidnaping remained a capital a capital crime for crime statute-of-limitations for statute-of-limitations purposes purposes after United United States States v. Jackson, v. Jackson, 390 U.S (1968), U.S. because 570 (1968), because the Court held held that 18 that U.S.C. 18 U.S.C s death-penalty 1201 s death-penalty provisions violated violated a defendant s a defendant s procedural rights procedural under the rights under the Fifth and and Sixth Sixth Amendments Amendments but did not but hold did that not thehold that the provisions violated violated the defendant s the defendant s substantive rights substantive under rights under the Eighth Amendment. Appellee s Appellee s counsel also counsel should address also should address whether this this issue issue properly is preserved properly for preserved en banc for en banc consideration. Additionally, Additionally, counsel should counsel address should any otheraddress any other issues that that might might bear on bear the separation-of-powers the separation-of-powers question question that counsel determines determines appropriate. appropriate. Sincerely, CHARLES R. FULBRUGE III, Clerk Clerk cc: Ms Ms Kathryn N Nester N Nester By: Geralyn A. A. Maher Maher Calendar Clerk Clerk

55 EXHIBIT CC

56 1070 PUBLIC LAW OCT. 23, 1972 [86 STAT. October 23, 1972 [H.R ] Public Law AN ACT To amend the joint resolution establishing the American Revolution Bicentennial Commission, as amended. Be it enacted by the Senate and House of Representatives of the American Revo- United States America in Congress assembled, That the joint reso- o lution entitled -Joint resolution to establish the American Revolution Bicentennial Commission, and for other purposes", approved July 4, 1966 (80 Stat. 259), as amended, is further amended as follows: Appropriation. Section 7 (a) is amended to read as follows: Ante, p. 43. "SEC. 7. (a) There is hereby authorized to be appropriated to carry out the purposes of this Act until February 15, 1973, $3,356,000, of which not to exceed $2,400,000 shall be for grants-in-aid pursuant to section 9 (1) of this Act." Grants-in-aid. Svc. 2. Section 9 is amended by the addition of the following new subsections : "(2) make grants to nonprofit entities including States, territories, the District of Columbia, and the Commonwealth of Puerto Rico (or subdivisions thereof) to assist in developing or supporting bicentennial programs or projects. Such grants may be up to 50 per centum of the total cost of the program or project to be assisted; "(3) in any case where money or property is donated, be(lueathed, or devised to the Commission, and accepted thereby for purposes of assisting a specified nonprofit entity, including States, territories, the District of Columbia, and the Commonwealth of Puerto Rico (or subdivisions thereof), for a bicentennial program or project, grant such money or property, plus an amount not to exceed the value of the donation, bequest, or devise: Pro-,'ided, That the recipient agrees to match the combined value of the grant for such bicentennial program or project." Approved October 23, lution Bicentennial Commission. October 24, 1972 [H.R Act for the Protection of Foreign Officials and Official Guests of the United States. Public Law AN ACT To amend title 18, United States Code, to provide for expanded protection of foreign officials, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the "Act for the Protection of Foreign Officials and Official Guests of the United States". STATEMFENT OF FINDINGS AND DECLARATION OF POLICY SEC. 2. The Congress recognizes that from the beginming of our history as a nation, the police power to investigate, prosecute, and punish common crimes such as murder, kidnaping, and assault has resided in the several States, and that such power should remain with the States. The Congress finds, however, that harassment, intimidation, HeinOnline Stat

57 86 STAT.] PUBLIC LAW OCT. 24, obstruction, coercion, and acts of violence committed against foreign officials or their family members in the United States or against official guests of the United States adversely affect the foreign relations of the United States. Accordingly, this legislation is intended to afford the United States jurisdiction concurrent with that of the several States to proceed against those who by such acts interfere with its conduct of foreign affairs. Juradiction. TITLE I-MURDER OR MANSLAUGHTER OF FOREIGN OFFICIALS AND OFFICIAL GUESTS SEC Chapter 51 of title 18, United States Code, is amended by 62 Stat adding at the end thereof the following new sections: 18 US( " Murder or manslaughter of foreign officials or official guests "(a) Whoever kills a foreign official or official guest shall be pun- Penalty. ished as provided under sections 1111 and 1112 of this title, except that any such person who is found guilty of murder in the first degree shall be sentenced to imprisonment for life. "(b) For the purpose of this section 'foreign official' means- Definitions. "(1) a Chief of State or the political equivalent, President, Vice President, Prime Minister, Ambassador, Foreign Minister, or other officer of cabinet rank or above of a foreign government or the chief executive officer of an international organization, or any person who has previously served in such capacity, and any member of his family, while in the United States; and "(2) any person of a foreign nationality who is duly notified to the United States as an officer or employee of a foreign government or international organization, and who is in the United States oil official business, and any member of his family whose presence in the United States is in connection with the presence of such officer or employee. "(c) For the purpose of this section: "(1) 'Foreign government' means the government of a foreign country, irrespective of recognition by the United States. "(2) 'International organization' means a public international organization designated as such pursuant to section I of the International Organizations Immunities Act (22 U.S.C. 288). 59 Stat "(3) 'Family' includes (a) a spouse, parent, brother or sister, child, or person to whom the foreign official stands in loco parentis, or (b) any other person living in his household and related to the foreign official by blood or marriage. "(4) 'Official guest' means a citizen or national of a foreign country present in the United States as an official guest of the government of the United States pursuant to designation as such by the Secretary of State. " Conspiracy to murder "If two or more persons conspire to violate section 1111, 1114, or 1116 of this title, and one or more of such persons do any overt act to 62 Stat. 756; II 65 Stat. 721; effect the object of the conspiracy, each shall be punished by imprison- Supra. ment for any term of years or for life." SEC 'The analysis of chapter 51 of title 18, United States Code, is amended by adding at the end thereof the following new items: "1116. Murder or manslaughter of foreign officials or official guests. "1117. Conspiracy to murder." HeinOnline Stat

58 1072 PUBLIC LAW OCT. 24, 1972 TITLE 11-KIDNAPING [86 STAT. 62 Stat. 760; 70 Stat Stat Ante, p Penalty. SEc Section 1201 of title 18, United States Code, is amended to read -as follows: " Kidnaping "(a) Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person, except in the case of a minor by the parent thereof, when: "(1) the person is willfully transported in interstate or foreign commerce; "(2) any such act against the person is done within the special maritime and territorial jurisdiction of the United States; "(3) any such act against the person is done within the special aircraft jurisdiction of the United States as defined in section 101 (32) of the Federal Aviation Act of 1958, as amended (49 U.S.C. 1301(32)); or "(4) the person is a foreign official as defined in section 1116 (b) or an official guest as defined in section 1116(c) (4) of this title, shall be punished by imprisonment for any term of years or for life. "(b) With respect to subsection (a) (1), above, the failure to release the victim within twenty-four hours after he shall have been unlawfully seized, confined, inveigled, decoyed, kidnaped, abducted, or carried away shall create a rebuttable presumption that such person has been transported in interstate or foreign commerce. "(c) If two or more persons conspire to violate this section and one or more of such persons do any overt act to effect the object of the conspiracy, each shall be punished by imprisonment for any term of years or for life." SEC The analysis of chapter 55 of title 18, United States Code, is amended by deleting "1201. Transportation.", and substituting the following: "1201. Kidnaping." TITLE III--PROTECTION OF FOREIGN OFFICIALS AND OFFICIAL GUESTS 78 Stat Offenses and penalties. Demonstrations. SEc Section 112 of title 18, United States Code, is amended to read as follows: " 112. Protection of foreign officials and official guests "(a) Whoever assaults, strikes, wounds, imprisons, or offers violence to a foreign official or official guest shall be fined not more than $5,000, or imprisoned not more than three years, or both. Whoever in the commission of any such act uses a deadly or dangerous weapon shall be fined not more than $10,000, or imprisoned not more than ten years, or both. "(b) Whoever willfully intimidates, coerces, threatens, or harasses a foreign official or an official guest, or willfully obstructs a foreign official in the performance of his duties, shall be fined not more than $500, or imprisoned not more than six months, or both. "(c) Whoever within the United States but outside the District of Columbia and within one hundred feet of any building or premises belonging to or used or occupied by a foreign government or by a foreign official for diplomatic or consular purposes, or as a mission to HeinOnline Stat

59 86 STAT.] PUBLIC LAW OCT. 24, an international organization, or as a residence of a foreign official, or belonging to or used or occupied by an international organization for official business or residential purposes, publicly- "(1) parades, pickets, displays any flag, banner, sign, placard, or device, or utters any word, phrase, sound, or noise, for the purpose of intimidating, coercing, threatening, or harassing any foreign official or obstructing him in the performance of his duties, or "(2) congregates with two or more other persons with the intent to perform any of the aforesaid acts or to violate subsection (a) or (b) of this section, shall be fined not more than $500, or imprisoned not more than six months, or both. "(d) For the purpose of this section 'foreign official', 'foreign government', 'international organization', and 'official guest' shall have the same meanings as those provided in sections 1116 (b) and (c) of this title. "(e) Nothing contained in this section shall be construed or applied so as to abridge the exercise of rights guaranteed under the first amendment to the Constitution of the United States." SEC The analysis of chapter 7 of title 18, United States Code, is amended by deleting "112. Assaulting certain foreign diplomats and other official personnel." and adding at the beginning thereof the following new item: "112. Protection of foreign officials and official guests." Definitions. Ante, p USC prec. title 1. TITLE IV-PROTECTION OF PROPERTY OF FOREIGN GOVERNMENTS AND INTERNATIONAL ORGANIZA- TIONS SEC Chapter 45 of title 18, United States Code, is amended by 62 Stat adding at the end thereof the following new section: 18 usc 951. " 970. Protection of property occupied by foreign governments "(a) Whoever willfully injures, damages, or destroys, or attempts 2 offe and to injure, damage, or destroy, any property, real or personal, located within the United States and belonging to or utilized or occupied by any foreign government or international organization, by a foreign official or official guest, shall be fined not more than $10,000, or imprisoned not more than five years, or both. "(b) For the purpose of this section 'foreign official', 'foreign Definitions. government', 'international organization', and 'official guest' shall have the same meanings as those provided in sections 1116 (b) and (c) of this title." Ante, p SEC The analysis of chapter 45 of title 18, United States Code, is amended by adding at the end thereof the following new item: "970. Protection of property occupied by foreign governments." SEC. 3. Nothing contained in this Act shall be construed to indicate an intent on the part of Congress to occupy the field in which its provisions operate to the exclusion of the laws of any State, Commonwealth, territory, possession, or the District of Columbia on the same subject matter, nor to relieve any person of any obligation imposed by any law of any State, Commonwealth, territory, possession, or the District of Columbia. Approved October 24, HeinOnline Stat

60 EXHIBIT DD

61

62

63

64

65

66

67

68

69

70

71

72 EXHIBIT EE

73 HeinOnline Cong. Rec