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KIRKLAND & ELLIS LLP Summary of the Law We have reviewed every reported case under 18 U.S.C. §§ 1591, 2422(b), and 2423(b), and cannot find a single one that resulted in a conviction on facts akin to the ones here. In some respects, it is not surprising that no precedent supports federal prosecution of a man who engaged in consensual conduct, in his home, that amounts to solicitation under State law. After all, prostitution, even when the allegations involve minors, is fundamentally a State concern, United States v. Evans, 476 F.3d 1176, n.1 (11th Cir. 2007) (noting that federal law “does not criminalize all acts of prostitution (a vice traditionally governed by state regulation)”), and there is no evidence that Palm Beach County authorities and Florida prosecutors cannot effectively prosecute and punish the conduct. See also Batchelder v. Gonzalez, No. 4:07-cv-00330-SPM- AK, 2007 WL 5022105 (N.D. Fla. Oct. 19, 2007). In fact, the opposite is ttue—the state-elected officials, cognizant of the local mores of the community, have a lauded history of just such prosecutions. In any event, and as set forth below, none of the federal statutes in this case remotely supports a prosecution on the facts of this case without each and every element being stretched in a novel way to encompass the behavior at issue. We begin with first principles. Courts in this country have “traditionally exercised restraint in assessing the reach of federal criminal statutes, both out of deference to the prerogatives of Congress, Dowling v. United States, 473 U.S. 207 (1985), and out of concern that ‘a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed.”” Arthur Andersen LLP v. United States, 544 U.S. 696, 703 (2005) (quoting McBoyle v. United States, 283 USS. 25, 27 (1931)) (citation omitted), Two recent Supreme Court decisions dramatically underscore these principles and help to highlight why federal prosecution in this case would be improper as a matter of both law and policy. See United States v. Santos, No. 06-1005 (June 2, 2008); Cuellar v. United States, No. 06-1456 (June 2, 2008). Though they both address the interpretation and application of the federal money laundering statute, 18 U.S.C. § 1956, the principles they set forth are equally applicable here. In Santos, the Court held that the statutory term “proceeds” means “profits” rather than “receipts,” and thus gave the statute a significantly narrower interpretation than what the government had urged. In his plurality opinion, Justice Scalia emphasized that where a statutory term in a criminal statute could support either a narrow or broad application, the narrow interpretation must be adopted because “[w]e interpret ambiguous criminal statutes in favor of defendants, not prosecutors.” Slip op. at 12. As his opinion explained, the rule of lenity “not only vindicates the fundamental principle that no citizen should be held accountable for a violation of a statute whose commands are uncertain, or subjected to punishment that is not clearly proscribed. It also places the weight of inertia upon the party that can best induce HOUSE_OVERSIGHT_012145