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Case 1:20-cr-00330-PAE Document 206 Filed 04/16/21 Page 14 of 22 apply this time-honored presumption unless Congress has clearly manifested its intent to the contrary.” Gentile, 235 F. Supp. 2d at 654 (quoting Hughes, 520 U.S. at 946 (emphasis added by court)).° The First Circuit, addressing the issue on an ineffective assistance of counsel of claim (and thus not reaching a merits decision), issued a similar caution in the specific context of the 2003 Amendment: [W]hen Congress has sounded an uncertain trumpet, a court ought to refrain from applying an enlarged criminal statute of limitations retrospectively. ... Seen in this light, Toussie potentially alters the second step in the Landgraf approach. Miller, 911 F.3d at 645.° By contrast, the government cites only one case—Nader—in which a court has held that the application of a criminal statute of limitations to pre-enactment conduct is permissible under the second step of Landgraf. Like the government here, however, the court in Nader offered no path to reconciling Landgraf with Toussie. Instead, it applied Landgraf, a civil case, in a manner that interprets Toussie out of existence in the retroactivity context, without any suggestion from the Supreme Court that it intended such an effect. The opinions in Miller and Gentile, in acknowledging the need to read Landgraf and Toussie in harmony, provide the correct legal framework for the application of the second step of Landgraf. This is particularly so in light of Congress’ explicit rejection of a retroactivity provision in the 2003 Amendment, a factor not considered in Miller and absent from Gentile. In arguing that “Congress may retroactively extend the limitations period for still-viable prosecutions” (Opp. 34) (emphasis added), the government completely misses the point. There is > The governments attempt to discredit Gentile on the ground that it relied in part on a pre-Landgraf opinion (Opp. 36) rings hollow. The court made clear that it was applying Landgraf (in conjunction with Toussie and Hughes). Gentile, 235 F. Supp. at 654-55. ° For this reason, the Second Circuit’s applications of Landgraf in Vernon v. Cassadaga Valley Cent. School Dist., 49 F.3d 886 (2d Cir. 1995), and In re Enterprise Mortgage Acceptance Co., 391 F.3d 401 (2d Cir. 2004)—both of which involved civil statutes of limitations—do not resolve the issue. DOJ-OGR-00003666