DOJ-OGR-00010424.jpg

Case 1:20-cr-00330-PAE Document 662 Filed 06/15/22 Page 7 of 29 A. A Jury Must Determine the End Date of Criminal Conduct that Dictates Which Guidelines Book Applies Consistent with the Ex Post Facto Clause. As set forth above, it would be a violation of the Ex Post Facto Clause for the Court to sentence Ms. Maxwell under the 2004 Guidelines absent a finding that the offense conduct continued past November 1, 2004. That finding must be made by a jury, not the sentencing court. Because the jury never made such a finding here, the Court cannot apply the 2004 Guidelines and must instead apply the 2003 Guidelines. Several appellate courts, including the Second Circuit, have held that if the end date of the offense conduct dictates whether, consistent with the Ex Post Facto Clause, a harsher penalty may apply to the defendant, then that fact must be resolved by a jury. See United States v. Julian, 427 F.3d 471, 480-482 (7" Cir. 2005) (“As it is the lifespan of the conspiracy that determines whether, consistent with the Ex Post Facto Clause, the defendant may be subject to the enhanced penalty [of 18 U.S.C. § 2423], the question whether the alleged conspiracy continued beyond the effective date of the new penalty is one that must be submitted to the jury.”); United States v. Tykarsky, 446 F.3d 458, 478-480 (3d Cir. 2006) (“[B]ecause the communications spanned two different versions of the statute [18 U.S.C. § 2422] with different minimum penalties, the question of whether the violation extended beyond the effective date of the amended version was one that had to be resolved by the jury.”); United States v. Harris, 79 F.3d 223 (2d Cir. 1996) (noting that when the offense conduct for a continuing criminal offense is alleged to straddle the date when the applicable penalty increased, the jury must determine whether the criminal conduct continued past the date of the change for purposes of the Ex Post Facto Clause); United States v. Torres, 901 F.2d 205, 226-27 (2d Cir. 1990) (same), overruled on other grounds as recognized by United States v. Marcus, 628 F.3d 36 (2d Cir. 2010). DOJ-OGR-00010424