DOJ-OGR-00003667.jpg

Case 1:20-cr-00330-PAE Document 206 Filed 04/16/21 Page 15 of 22 no dispute that Congress could have amended § 3283 in 2003 to extend the limitations period for live charges; had it done so explicitly, the government would prevail on the first Landgraf step.’ Rather, the second Landgraf step asks whether the effects of retroactive application of a statute are such that the Court, in the absence of an express retroactivity provision, should presume that Congress intended to apply the statute retroactively. See Landgraf, 511 U.S. at 283 (framing issue as whether a law is “the kind of provision that [applies] to events antedating its enactment in the absence of clear congressional intent”).* As both Miller and Gentile recognize, Toussie suggests that, in the context of a criminal statute of limitations, Congress should not be presumed to have intended retroactive application absent a clear expression of such intent, and the Court should not reach such a conclusion here. Il. Section 3283 Does Not Apply at All. Ms. Maxwell’s Motion should be granted for the separate and independent reason that regardless of whether the 2003 Amendment can be applied retroactively, § 3283 does not apply to the offenses with which Ms. Maxwell is charged. Neither enticement of an individual to travel nor transportation of a minor is an “offense involving” the sexual or physical abuse or kidnapping of a child. The government fails to rebut the long line of cases interpreting “offense involving” language to refer to offenses that necessarily entail particular conduct, and the ’ For this reason, the government’s invocation of Falter v. United States, 23 F.2d 420 (2d Cir. 1928)—a case decided decades before both Landgraf and Toussie—adds nothing to the analysis. While the government cites Falter for the uncontroversial proposition the law treats the revival of time-barred criminal charges more harshly than the extension of live charges—indeed, as the government points out, the former raises issues under the Ex Post Facto Clause—it sheds no light on the issue of statutory interpretation here, particularly in light of Landgraf and Toussie. * The fact that the inquiry into a statute’s retroactive effects is the second step of Landgraf, rather than the first, demonstrates that Landgraf is not an inquiry into a statute’s constitutionality. Ifthe Landgraf analysis were simply an inquiry into whether the Ex Post Facto clause permits Congress to apply a criminal statute of limitations retroactively, as the government contends (Opp. 34-35), the first step would have to be read out of Landgraf entirely. Otherwise, Congress could expressly prescribe an unconstitutional retroactive application of a statute, thereby ending the analysis at step one before the court ever addressed the statute’s constitutionality. 10 DOJ-OGR-00003667