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Case 1:20-cr-00330-PAE Document 206 Filed 04/16/21 Page17 of 22 outside the sentencing and immigration context in which the “necessarily entails” approach has been rejected, it fails to offer any.” Nor does the government respond to the case law cited by Ms. Maxwell in which courts have interpreted “offense involving” language in a venue statute, which has nothing to do with sentencing, immigration, or prior convictions, to refer to the elements of the offense. See, e.g., United States v. Morgan, 393 F.3d 192, 198 (D.C. Cir. 2004) (“The most natural reading of § 3237(a) 4 2 is to construe ‘any offense involving’ by reference to the elements of the offense at issue.”) (emphasis in original); United States v. Ayo, 801 F. Supp. 2d 1323, 1331 (S.D. Ala. 2011) (“The Eleventh Circuit has employed the second paragraph of Section 3237(a) when such transportation, or use of the mails, is an element of the offense charged.”). The arbitrary limitations the government seeks to impose on the “necessarily entails” approach simply do not exist. The Supreme Court’s opinion in Nijhawan v. Holder, 557 U.S. 29 (2009)—the only Supreme Court case the government cites in which the Court applied a fact-based approach to an “offense involving” statute—does not break this line of cases at all. In Nijhawan, the statutory provision at issue referred to “an offense that . . . involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.” 557 U.S. at 32 (quoting 8 U.S.C. § 1101(a)(43)(M)(i)) (emphasis added by Court). The issue before the Court was not whether the statute required “fraud or deceit” to be an element of the underlying offense, but whether the referenced monetary threshold was required to be an element. The Court held that it was not, reasoning that “Tt]he words ‘in which’ (which modify ‘offense’) can refer to the conduct involved ‘in’ the ” According to the government, the ostensible rationale for the “necessarily entails” approach—avoiding the need for courts to examine the facts of prior convictions—is not present in the § 3283 context. But a fact-based approach poses a different practical obstacle in the statute of limitations context. Under a fact-based approach here, for example, in order to obtain the benefit of the expanded limitations period, the government would be required to prove conduct (i.e., sexual abuse) that is not an element of an offense; a jury would be required to find not only that Ms. Maxwell committed the offenses with which she is charged but also that her offenses “involve[] . . . the sexual or physical abuse .. . of a child”; and only after the jury has returned its verdict would it be known which statute of limitations—§ 3283 or the default provision under § 3282—applies to this prosecution. 12 DOJ-OGR-00003669