EFTA00221363.pdf

Case 9:09-cv-80591-KAM Document 29 Entered on FLSD Docket 05/26/2009 Page 1 of 36 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA JANE DOE No. 101, Case No.: 9:09-CV-80591-KAM Plaintiff, v. JEFFREY EPSTEIN, Defendant. DEFENDANT JEFFREY EPSTEIN'S MOTION TO DISMISS THE FIRST AMENDED COMPLAINT OR, IN THE ALTERNATIVE, FOR A MORE DEFINITE STATEMENT Defendant JEFFREY EPSTEIN, by and through his undersigned counsel, moves to dismiss or, alternatively, for a more definite statement of, the First Amended Complaint. Fed. R. Civ. RR. 12(b)(6) & 12(e) (2009); Loc. Rule 7.1 (S.D. Fla. 2009). In support, Defendant states: Pleading Standard & Summary of Argument The First Amended Complaint ("FAC") alleges claims under 18 U.S.C. § 2255 that explicitly incorporate, and thus necessarily require Plaintiff to prove that Defendant is guilty of violating, specific criminal prohibitions set forth in Title 18 of the U.S. Code. While the Supreme Court has held that every complaint "'must contain something more than a statement of facts that merely creates a suspicion of a legally cognizable right of action," Bell Atlantic Corp. v. Twombly, 550 U.S. 544. 555 (2007), and just last week made clear that "Twombly expounded the pleading standard for 'all civil actions' and not just pleadings made in the context of an antitrust dispute," Ashcroft v. Iqbal, No. 07-1015 (U.S. May 18, 2009) (slip op. at 20) (quoting Fed. R. Civ. P. 1), the need to enforce these pleading requirements is especially acute in this context. After all, the defendant in a § 2255 action is essentially being put on trial for violating criminal laws, and the statutory penalty is obviously and intentionally punitive. As a result, it not only is appropriate to require "more than an unadorned, the-defendant- EFTA00221363 Case 9:09-cv-80591-KAM Document 29 Entered on FLSD Docket 05)26.2009 Page 2 of 36 unlawfully-harmed-me accusation" before allowing plaintiffs to launch a fishing expedition for evidence of possible crimes, lqbal, slip op. at 14 (citing Thvombly, 550 U.S. at 555), but essential that the accused be given "'such a statement of the facts and circumstances as will inform [him] of the specific offense ... with which he is charged," including a "specific identification of fact[s]" required to establish "fully, directly, and expressly, without any uncertainty or ambiguity, ... all the elements nececsary to constitute the offence." Russell v. United States, 369 U.S. 749, 764-65 (1962) (quoting United States v. Hess, 124 U.S. 483, 487 (1888); United States v. Carll, 105 U.S. 611, 612 (1881)). The FAC does not come close to discharging that burden. A. The applicable version of § 2255 only permits "minors" to sue: "Any minor who is a victim of a violation of [certain criminal statutes] and who suffers personal injury as a result of such violation may sue." 18 U.S.C. § 2255(a) (2003) (emphasis added). Yet the FAC affirmatively admits that Plaintiff is over the age of 18. See FAC 1 18 ("Plaintiff was first brought to Defendant's mansion in or about the spring of 2003, when she was merely 17 years old."). Plaintiff is bound by that admission, and the FAC must be dismissed with prejudice. Best Canvas Prods. & Supplies, Inc. v. Ploof Truck Lines. Inc., 713 F.2d 618, 621 (11th Cir. 1983) ("[A] party is bound by the admissions in his pleadings."). B. Nor is Plaintiff the "victim of a violation" of a predicate criminal statute within the meaning of § 2255. 18 U.S.C. § 2255(a). In our system of justice, those accused of "violating" a criminal statute are innocent until proven guilty beyond a reasonable doubt in a criminal court. With due respect to the courts that have concluded otherwise, it defies common sense to think that Congress intended to invert that fundamental legal norm, and the legislative history of § 2255 expressly confirms that Congress intended to condition § 2255 actions on an antecedent criminal conviction. The FAC therefore must be dismissed because it does not—and cannot— allege that Defendant has been convicted of a predicate criminal offense. c, Even if the applicable version of § 2255 were construed to allow adults to sue in the -2- EFTA00221364 Case 9:09-cv-80591-KAM Document 29 Entered on FLSD Docket 05i26/2009 Page 3 of 36 absence of a predicate conviction, the FAC not only fails to meet the modest pleading standards elucidated by Twombly and Iqbal, but—even taken as true—would not establish a legally "plausible" claim that Plaintiff is a victim of any predicate criminal offense giving rise to a § 2255 cause of action. See Iqbal, slip op. at 15 (explaining that every civil complaint must state "a plausible claim for relief," and that "where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not `shown'—`that the pleader is entitled to relief.") (quoting Fed. It. Civ. P. 8(aX2)). k Finally, Plaintiffs attempt to multiply the penalties recoverable under § 2255(a) by pleading six separate counts is inconsistent with the language and structure of § 2255. The law allows for a single action predicated on any and all predicate criminal acts, and entitles the plaintiff only to a single recovery of actual damages (subject only to a presumptive minimum). I. THE COMPLAINT MUST BE DISMISSED BECAUSE PLAINTIFF IS NOT A MINOR. A. The Version of 18 U.S.C. § 2255 In Effect When The Predicate Acts Allegedly Were Committed Allowed Only "Minors" To File Suit. The FAC is predicated exclusively on acts that allegedly occurred in 2003. FAC ¶ 18 ("Plaintiff was first brought to Defendant's mansion in ... the spring of 2003."); id. ¶ 19 ("Defendant thereafter lured [Plaintiff] to [his home] on at least one and perhaps two other occasions in the spring and/or summer of 2003."). At that time, 18 U.S.C. § 2255(a) provided: Any minor who is a victim of a violation of [certain specified federal statutes] and who suffers personal injury as a result of such violation may sue in any appropriate United States District Court and shall recover the actual damages such minor sustains and the cost of the suit, including a reasonable attorney's fee. Any minor as described in the preceding sentence shall be deemed to have sustained damages of no less than $50,000 in value. It is well settled that in interpreting a statute, the court's inquiry begins with the text and structure of the law. CBS, Inc. v. Prime Time 24 Venture, 245 F.3d 1217, 1222 (11th Cir. 2001) ("We begin our construction of [a statutory provision] where courts should always begin the process of legislative interpretation, and where they often should end it as well, which is with the -3- EFTA00221365 Case 9:09-cv-80591-KAM Document 29 Entered on FLSD Docket 05/26/2009 Page 4 of 36 words of the statutory provision.") (quoting Harris v, Gamer, 216 F.3d 970, 972 (11th Cir. 2000) (en bane)) (first alteration omitted). In this case, the plain text of the 2003 statute is both clear and unmistakable. It allowed only minors (or the representative of a then-minor, see Fed R. Civ. P. 17(c)) to initiate suit under § 2255. It provided only that "any minor ... may sue" and that "any minor ... shall recover the actual damages such minor sustains" as a result of the predicate acts. Id. (emphasis added). The law's use of the present tense further underscored its limited scope: It spoke of "any minor who is a victim," provided that "such minor ... shall recover" damages arising from the underlying offense, and stated that "any minor ... shall be deemed" to have sustained at least $50,000 in damages. Id. (emphasis added). Where the statute's words are unambiguous—as the are here--the "judicial inquiry is complete." Merritt v, Dillard Paper Co., 120 F.3d 1181, 1186 (11th Cir. 1997) (citation omitted)). Under the 2003 version of the statute, only minors could initiate suit. To the extent there is any ambiguity in the text—and there is none—the law's legislative history further underscores Congress's intent to limit the right of action to minors: "Current law provides for a civil remedy for personal injuries resulting from child pornography offenses. This section expands the number of sex offenses in which a minor may pursue a civil remedy for personal injuries resulting from the offense." H.R. Rep. 105-557, at 23 (1998), as reprinted in 1998 U.S.C.C.A.N. 678, 692. And perhaps most telling, Congress amended § 2255 in 2006— three years after the alleged misconduct in this case supposedly took place—to make the civil action available to persons who had turned 18 by the time they filed suit: (a) In general.—Any person who, while a minor, was a victim of a violation of section 2241(c), 2242, 2243, 2251, 2251A, 2252, 2252A, 2260, 2421, 2422, or 2423 of this title and who suffers personal injury as a result of such violation, regardless of whether the injury occurred while such person was a minor, may sue in any appropriate United States District Court and shall recover the actual damages such person sustains and the cost of the suit, including a reasonable attorney's fee. Any person as described in the preceding sentence shall be deemed to have sustained damages of no less than $150,000 in value. -4- EFTA00221366 Case 9:09-cv-80591-KAM Document 29 Entered on FLSD Docket 05/26/2009 Page 5 of 36 18 U.S.C. § 2255 (2006) (emphasis added). The contrast between the 2003 and 2006 versions of § 2255 is stark. The 2006 law replaces each of the 2003 law's uses of the term "minor with the term "person." Where the 2006 law does refer to a "minor," it changes the 2003 law's present-tense references ("is") to past-tense references ("was"). And the 2006 law's new language now makes clear that, unlike the 2003 statute, those victimized while under the age of 18 may sue after they turn 18. Given that amendments must be interpreted "to have real and substantial effect," Stone v. I.N.S., 514 U.S. 386, 397 (1995), there can be no doubt that Congress recognized the prior statute's strict limitations and for the first time expanded the right of action to adults. Indeed, the history of the 2006 amendments clearly shows that Congress intended to change the law, not merely to clarify it. Those amendments were made by § 707 of the Adam Walsh Child Protection and Safety Act, Pub. L. No. 109-248, 120 Stat. 587, 650 (2006), and are known as "Masha's Law." As Senator Kerry—the author of Masha's Law-e xplained: What Masha's law does, and what is incorporated in here, is it changes "any minor" to "any person," so that if a minor is depicted in photographs pornographically that are distributed over the Internet, but by the time the abuser is caught, the minor is an adult, they can still recover. They cannot listbv and that is ridiculous. It makes sure that recovery on the part of a minor can take place when they become an adult.... Although I don't think there is any price too high to cost an individual who would take advantage of a minor, I think it is only appropriate to ... make sure that reaching the age of adulthood does not exempt someone from recovery. It is a tribute to continuing to do what this bill does, and that is look after the protection of minors and ensure that those who violate them are caught and punished and have to pay to the maximum extent. 152 Cong. Rec. S8012-02 at 88016 (July 20, 2006) (statement of Sen. Kerry) (emphasis added). Courts typically give special weight to the statements of a bill's sponsor, Corley v, U.S. 129 -5- EFTA00221367 Case 9:09-cv-80591-KAM Document 29 Entered on FLSD Docket 05/26/2009 Page 6 of 36 S.Ct. 1558, 1569 (Apr. 6, 2009) ("[Al sponsor's statement to the full Senate carries considerable weight.")) There is no basis to depart from that rule here. It thus is no answer that the 2003 statute's limitations clause provided that "in the case of a person under a legal disability, [the complaint may be filed] not later than three years after the disability," 18 U.S.C. § 2255(b) (2003), such that the unamended version of the law implicitly must have permitted victims to sue even after they turned 18. That interpretation not only would render Masha's Law superfluous; it would make Masha's Law's internally redundant, because Masha's Law retained the "legal disability" language from the 2003 version of § 2255(b). See 18 U.S.C. § 2255(b) (2006). In short, the retained "legal disability" language in § 2255(b) of the 2006 statute would be entirely redundant were it construed to do implicitly what the law elsewhere did expressly. In these circumstances, the traditional rules against surplusage and redundancy apply with double force. See, e.g., Duncan v. Walker, 533 U.S. 167, 174 (2001). The "legal disability" language in § 2255(b) should be interpreted to reference classic legal disabilities like insanity, mental disability, or imprisonment—not age. Indeed, that is precisely how Congress typically uses the term "legal disability": most federal statutes that use the term make clear that it doesn't include age. See, e.g., 25 U.S.C. § 590c ("A share or interest payable to enrollees less than eighteen years of age or under legal Similarly, the official summary prepared by the Congressional Research Service ("CRS") explained that Masha's Law Itievises provisions allowing victims of certain sex-related crimes to seek civil remedies to: (I) allow adults as well as minors to sue for injuries; and (2) increase from $50,000 to $150,000 the minimum level of damages." Official Summary of Pub. Law No. 109.248 (July 27, 2006), as reprinted at http://thornas.loc.gov/cgi-bintbdquerylz?d109:11R04472:®®®L&summ2=m& (emphasis added) (last visited May 10, 2009). Courts have long consulted official CRS summaries to assess legislative intent, see. e.g., &nig v. Pension Ben. Guar. Com. 744 F.2d 133, 145 & n.7 (D.C. Cr. 1984); DIRECTV Inc. v. Cigoarella No. Civ.A 03-2384, 2005 WL 1252261 at *7 (D.NJ. May 24, 2005); Clohessv v. St Francis Host & Healthcare No. 98-C-4818, 1999 In 46898'2-•3 (ND. III. Jan. 28, 1999), and there is good reason to do so. By design, CRS summaries are intended to "objectively describe} the measure's ... effect upon ... current law" so that Congress can make informed judgments about the impact of proposed bills. See The Library of Congress, About CRS Summary, available at http://thomas.loc.gov/bsdabt dgetlitnil (last visited May 10, 2009). -6- EFTA00221368 Case 9:09-cv-80591-KAM Document 29 Entered on FLSD Docket 05;26;2009 Page 7 of 36 disability shall be paid ....") (emphasis added); id. § 783 ("Funds payable under sections 781 to 785 of this title to minors or to persons under legal disability shall be paid...?" (emphasis added); id. § 1128 ("Sums payable to enrollees ... who are less than eighteen years of age or who are under a legal disability shall be paid....") (emphasis added); id. § 1253 ("Sums payable ... to enrollees ... who are less than eighteen years of age or who are under a legal disability shall be paid....' (emphasis added); id. § 1273 (same); id. § 1283 (same); id. § 1295 (same); id. § 1300a-3 (same); id. § 1300c-3 (same); id. § 1300d-7 (same); see also 38 U.S.C. § 3501. Needless to say, Congress would not have had to address age expressly in any of these statutes if the term "legal disability" necessarily included one's status as a minor; instead, Congress's mere use of the term "legal disability" already would account for a would-be plaintiffs minority status. Given the rule "against reading a text in a way that makes part of it redundant," Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007) (citing TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001)), and the canon that "where words are employed in a statute which had at the time a well-known meaning ... in the law of this country, they are presumed to have been used in that sense," Standard Oil Co. v. United States, 221 U.S. 1, 59 (1911), § 2255's reference to "legal disability" can only be interpreted as a reference to classic disabilities like insanity or mental incapacity, but not age. But this Court need not even reach that issue in this case. Regardless of whether § 2255(b) would allow a minor to sue within three years of turning 18, that carve-out would not help Plaintiff in this case. After all, she openly admits that she was 17 years-old in 2003. FAC 11 18, 19. That means that she was either 22 or 23 when she filed this case in April 2009—at least a titll year beyond the three-year period set forth in § 2255(b), regardless of how the "legal disability" language in that subsection of the statute is construed. In short, and under any reasonable interpretation of the law, the version of the statute in effect at the time of the alleged criminal conduct giving rise to this suit would preclude Plaintiff from maintaining this action. -7- EFTA00221369 Case 9:09-cv-80591-KAM Document 29 Entered on FLSD Docket 05)26/2009 Page 8 of 36 B. Masha's Law Does Not Apply To This Case. The presumption against retroactivity and the Ex Post Facto clause preclude application of Masha's Law in this case, where the alleged predicate conduct was completed before 2006. 1. Congress Did Not Intend To Apply Masha's Law Retroactively. It is axiomatic that "retroactivity is not favored," Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988), and the "traditional presumption teaches that [an amended statute] does not govern absent clear congressional intent favoring such a result." Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1994). As the Supreme Court has explained, this presumption embodies a legal doctrine centuries older than our Republic. Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted. For that reason, the "principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal appeal." Kaiser Alum. & Chem. Corp. v. Bonjorno, 494 U.S. 827, 855 (1990) (Scalia, J., concurring). Id. at 265 (footnote omitted). Courts therefore apply the statute in effect at the time of the underlying conduct unless there is a clear statement that an amendment should apply retroactively to pre-enactment conduct. See, e.g., Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939, 952 (1997) ("Given the absence of a clear statutory expression of congressional intent to apply the 1986 amendment to conduct completed before its enactment, we ... hold that, under the relevant 1982 version of the [statute], the District Court was obliged to dismiss this action."). There is no clear indication that Congress intended Masha's Law to apply retroactively. Unlike the many cases in which Congress has specified that a particular amendment applies in proceedings "commenced on or after the date of enactment," Tello v. Dean Witter Reynolds,. Inc., 410 F.3d 1275, 1283 (11th Cir. 2005) (collecting examples), Masha's Law was subject only to a standard effective date provision that sheds no light on its retroactivity. See Landgraf, 511 U.S. at 1493 ("A statement that a statute will become effective on a certain date does not even -8- EFTA00221370 Case 9:09-cv-80591-KAM Document 29 Entered on FLSD Docket 05/26/2009 Page 9 of 36 arguably suggest that it has any application to conduct that occurred at an earlier date."). Far more important, the only expression of congressional intent regarding retroactivity strongly suggests that Congress did not intend Masha's Law to apply retroactively. As set forth above, Masha's Law was enacted as part of the Adam Walsh Act. The centerpiece of that Act was an expanded sex-offender registry ("SORNA") intended to bolster tracking of convicted sex offenders. See Pub. L. 109-248 §§ 1-155, 120 Stat. 587, 590-611 (2006). To effectuate SORNA, Congress provided that offenders must register "before completing a sentence of imprisonment with respect to the offense giving rise to the registration requirement, or not later than 3 business days after being sentenced" if no prison term was imposed. 42 U.S.C. § 16913(b). It also imposed penalties on offenders who fail to register. See 18 U.S.C. § 2250(a). At the same time, and of particular relevance in this case, Congress recognized that applying SORNA to past offenders would raise retroactivity concerns. It therefore addressed retroactivity expressly: The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before July 27, 2006 or its implementation in a particular jurisdiction, and to prescribe rules for the registration of any such sex offenders. 42 U.S.C. § 16913 (d). While Congress clearly provided that SORNA could be applied retroactively, it did not do so with respect to Masha's Law. As the Supreme Court and the Eleventh Circuit have long observed, "'where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposefully in the disparate inclusion or exclusion."' United States v. Jordan, 915 F.2d 622, 628 (11th Cir. 1990) (quoting Rodriguez v. United States, 480 U.S. 522, 525 (1987) (itself quoting Russello v. United States, 464 U.S. 16, 23 (1983))). There is no basis for departing from that rule. Given the strong evidence that Congress did not intend retroactively to apply Masha's Law, the 2003 version of § 2255 supplies the governing law. -9- EFTA00221371 Case 9:09-cv-80591-KAM Document 29 Entered on FLSD Docket 05/26/2009 Page 10 of 36 2. The Ex Post Facto Clause Bars Application Of Masha's Law. Even if Congress did intend Masha's Law to apply retroactively, doing so would violate the Ex Post Facto clause. U.S. CONST. art. 1, § 9, cl. 3. As the Eleventh Circuit has explained: [The] Constitution provides that "[n]o Bill of Attainder or ex post facto Law shall be passed" by Congress. U.S. Const. art. I, § 9, cl. 3. A law violates the Ex Post Facto Clause if it "'applies to events occurring before its enactment and disadvantages the offender affected by it' by altering the definition of criminal conduct or increasing the punishmentfor the crime." Lynce v. Mathis, 519 U.S. 433, 441 (1997) (quoting Weaver v. Graham 450 U.S. 24, 29 (1981)). United States v. Siegel 153 F.3d 1256, 1259 (11th Cir. 1998) (emphasis added; internal alterations omitted). Even though this case nominally involves a civil cause of action, the Ex Post Facto Clause is triggered both because Masha's Law dramatically increased the penalties for predicate criminal violations and because its retroactive application would revive Defendant's exposure to penalties that previously had become barred as a matter of law. a. Retroactive Application Of Masha's Law Would Increase The Penalties For Violating The Predicate Criminal Statutes. While the 2003 statute provided that "[a]ny minor ... shall be deemed to have sustained damages of no less than $50,000," 18 U.S.C. § 2255 (2003) (emphasis added), Masha's Law trebles the minimum statutory damages by providing that plaintiffs "shall be deemed to have sustained damages of no less than $150,000." Id. (2006) (emphasis added). As a result, the enhanced monetary penalties provided by Masha's Law "increas[e] the punishment for the crime," Lvnce, 519 U.S. at 441, and make "the punishment for crimes committed before its enactment `more onerous' than the punishment would have been under the unamended statute. Id. at 442 (quoting Weaver, 450 U.S. at 36). Those penalties are the direct consequence of a defendant's commission of a predicate criminal offense and form a deliberate part of the punishment for that crime. See, e.g., 134 Cong. Rec. S372-01 (Feb. 1, 1998) (statement of Sen. Grassley) ("(T]he sanctions provided for in my bill, such as ... the amended civil remedy section ... provide much needed criminal enforcement tools.") (emphasis added); 152 Cong. Rec. -10- EFTA00221372 Case 9:09-cv-80591-KAM Document 29 Entered on FLSD Docket 05/26/2009 Page 11 of 36 S8012-02 at 58016 (July 20, 2006) (statement of Sen. Kerry) ("[Masha's Law] raises from $50,000 to $150,000 the penalty ... if, in fact, someone ... is caught and convicted.") (emphasis added). Accordingly, Masha's Law cannot lawfully be applied in this case. The Eleventh Circuit's decision in United States v. Siegel, 153 F.3d 1256 (11th Cir. 1998), is virtually on point. hi Siegel the defendant pleaded guilty to charges under 18 U.S.C. § 371 and § 1956(aX1)(A) that arose out of actions taken he took between February 1, 1988 and May 1, 1990. Id. at 1259. Under the restitution statute in effect when the crimes were committed ("VWPA"), courts had discretion "to order `that the defendant make restitution to any victim of the offense!" Id. at 1259 (citing 18 U.S.C. § 3663 (1985)). But that discretion was limited: "In exercising this discretion, the court was required to consider `the amount of the loss sustained by any victim as a result of the offense, the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant's dependents, and such other factors as the court deems appropriate,' before fixing the amount of the restitution, if any, that the defendant was required to pay." Id. at 1260 (citing 18 U.S.C. § 3664(a) (1985)). Before Siegel pleaded guilty in July 1996, Congress passed the Mandatory Victims Restitution Act ("MVRA"). Id. at 1258-59 (citing Pub. L. No. 104-132, § 211). That law mandated the award of full restitution without regard to the defendant's economic circumstances. Id. at 1260. Congress expressly made those changes "effective for sentencing proceedings in cases in which the defendant is convicted on or after April 24, 1996." Id. at 1258 (quoting statute; alteration omitted). The district court applied MVRA at Siegel's sentencing and ordered him to pay restitution totaling $1,207,000 without considering his inability to do so. Id. at 1258. The Eleventh Circuit reversed, holding that MVRA "cannot be applied to a person whose criminal conduct occurred prior to [its effective date]." Id. at 1260. It explained: At the time [of sentencing], the amended VWPA thus had the potential to increase the amount of restitution they would have to pay, from an amount set by the court by taking into account appellants' financial circumstances, to full restitution. -11- EFTA00221373 Case 9:09-cv-80591-KAM Document 29 Entered on FLSD Docket 05/26/2009 Page 12 of 36 Accordingly, if the court determines that the VWPA should apply to this case, it must use the old version to avoid running afoul of the Ex Post Facto Clause. Id. (quoting United States v. Baggett, 125 F.3d 1319, 1322 (9th Cir. 1997)). This case is indistinguishable from Siegel. As in Siegel, Masha's Law caused "a substantive change ... to [defendant]'s detriment," by trebling the minimum statutory penalty payable to the victim of a predicate crime. Id. at 1260. As in Siegel, Masha's Law thus has "the potential to increase the amount of restitution [defendants] would have to pay" to victims of a predicate crime. Id. Accordingly, and as in Siegel, Masha's Law cannot be applied where the predicate criminal conduct allegedly occurred prior to the amended statute's effective date. It is no answer that the law at issue in Siegel provided "restitution" to the victim of a criminal offense while this statute provides "damages" to the victim of a criminal offense; by definition, damages paid by an offender to the victim of a criminal offense are restitution. See Black's Law Dict. (8th ed. 2004) (defining restitution as "[c]ompensation for loss; esp., full or partial compensation paid by a criminal to a victim."). Indeed, the case for applying a post facto principles is even stronger here than in Siegel: While MVRA mandated the award of actual damages to the victim, Masha's Law mandates the payment of at least $150,000 to the victim even if the victim did not actually sustain $150,000 in damages. See 18 U.S.C. § 2255 (2006) ("Any [victim] shall be deemed to have sustained damages of no less than 8150,000 in value.") (emphasis added). Given its obviously penal nature, there is little wonder why Senator Kerry repeatedly described Masha's Law as increasing "the penalty" for persons convicted of a predicate crime. 152 Cong. Rec. 58012-02, 58016 (July 20, 2006) (statement of Sen. Kerry). Because applying the 2006 amendments would increase the punishment for violating a predicate criminal statute, Masha's Law cannot lawfully be applied in this case b. Retroactively Applying Masha's Law Impermissibly Would Revive Defendant's Exposure To Previously Barred Penalties For His Alleged Violation Of The Predicate Criminal Statutes. -12- EFTA00221374 Case 9:09-cv-80591-KAM Document 29 Entered on FLSD Docket 05/26/2009 Page 13 of 36 Perhaps more important, the Er Post Facto clause precludes application of Masha's Law here because it would revive Defendant's exposure to penalties that previously had become barred by operation of law—no matter their amount. As set forth above, the 2003 statute allowed only "minors" to file suit. Because Plaintiff was 17 when the predicate offenses allegedly were committed, she could have sought the statutory penalty under the 2003 version of § 2255. Once Plaintiff turned 18, however, she lost her ability to sue. That extinguished Defendant's exposure to penalties for his alleged crimes. Applying Masha's Law thereby would revive Defendant's exposure to penalties in direct contravention of the Er Post Facto clause. The Supreme Court's decision in California v. Stogner, 539 U.S. 607 (2003), perfectly illustrates the point. In Stogner, the defendant was charged in 1998 based on sex crimes that he allegedly committed between 1955 and 1973. While the original three-year statute of limitations for those offenses long had lapsed, a California law purported to "revive" stale claims by authorizing the filing of charges within one year of a new police report alleging past child sexual abuse. 539 U.S. at 609-10 (discussing Cal. Penal Code Ann. § 803(g) (2003)). The defendant moved unsuccessfully to dismiss the indictment, and later appealed to the Supreme Court. That Court reversed, explaining that "the new statute threatens the kinds of harm that ... the Ex Post Facto Clause seeks to avoid," because its revival of previously barred claims would subject the defendant to penalties for criminal conduct "after the State has assured `a man that he has become safe from its pursuit," and thus would "deprive the defendant of the `fair warning' that might have led him to preserve exculpatory evidence." 539 U.S. at 611 (quoting Falter v United States, 23 F.2d 420, 426 (2d Cir. 1928) (Hand, J.) and Weaver, 450 U.S. at 28). More important, the Court observed, California's revival of otherwise barred claims fell squarely within a category of ex post facto laws condemned by the Supreme Court's seminal ex post facto decision, Calder v. Bull—namely, laws providing for "punishments, where the party was not, by law, liable to any punishment." Id. at 612 (quoting Calder, 3 Dall. 386, 391 (1798)). -13- EFTA00221375 Case 9:09-cv-80591-KAM Document 29 Entered on FLSD Docket 05/26/2009 Page 14 of 36 The second category—including any "law that aggravates a crime, or makes it greater than it was, when committed," describes California's statute as long as those words are understood as Justice Chase understood them—i.e., as referring to a statute that "intlict[s] punishments, where the party was not, by law, liable to any punishment." After (but not before) the original statute of limitations had expired, a party such as Stogner was not "liable to any punishment." California's new statute therefore "aggravated" Stogner's alleged crime, or made it "greater than it was, when committed," in the sense that, and to the extent that, it "inflicted punishment" for past criminal conduct that (when the new law was enacted) did not trigger any such liability. Id. at 613 (quoting Calder, 3 Dail. at 391) (internal citations omitted). The Court held that the Ex Post Facto clause precludes the revival of claims predicated on past crimes. The precise concerns animating Stogner are present in this case. As in Stogner, Defendant was liable to punishment" under § 2255 before Plaintiff turned 18, but once she attained that age, he no was longer "liable to punishment" under § 2255 for his alleged commission of the predicate crimes against her. And as in Stogner retroactively applying Masha's Law in a manner that would revive Defendant's exposure to statutory penalties would "aggravate" his alleged crimes "in the sense, and to the extent that, it `inflicted punishment' for past criminal conduct that (when the new law was enacted) did not trigger any such liability." Id. (quoting Calder, 3 Dail. at 391). At bottom, then, well-settled retroactivity and ex post facto principles preclude application of Masha's Law to Defendant's alleged pre-enactment conduct. C. The MC Must Be Dismissed Because Plaintiff Concededly Is Not A Minor. As the FAC makes clear, Plaintiff was 17 in the spring of 2003, and she thus was either 22 or 23 when she filed this suit in April 2009. FAC ¶ 18. Because Masha's Law cannot lawfully be applied to the alleged conduct in this case, and because the prior statute provided that only "minors" may sue, the FAC must be dismissed with prejudice. IL THE FAC MUST BE DISMISSED BECAUSE DEFENDANT HAS NOT BEEN CONVICTED OF A PREDICATE OFFENSE. Even if Plaintiff were entitled to maintain this suit—and without regard to which version of § 2255 applies—the FAC still would fail as a matter of law because it does not (and cannot -14- EFTA00221376 Case 9:09-cv-80591-KAM Document 29 Entered on FLSD Docket 05/26/2009 Page 15 of 36 consistent with Rule 11) allege that Defendant is guilty of "a violation" of a predicate statute. See 18 U.S.C. § 2255(a) (2003 & 2006) (plaintiff must be "a victim of a violation of [certain federal statutes]"). As set forth below, the plain text of the statute and its legislative history demonstrate that § 2255 is conditioned on a prior federal conviction. Because Defendant has never been convicted of a predicate federal offense, the FAC must be dismissed. A. The Statute Requires Proof Of A Prior Federal Conviction. By its plain terms, § 2255 only permits "a victim of a violation" of certain federal criminal statutes to seek statutory penalties. See 18 U.S.C. § 2255(a) (2003 & 2006). Given the presumption of innocence that animates our system of criminal justice, Congress's reference to "a victim of a violation" of a criminal statute can only be interpreted to require proof that the defendant has been convicted of a predicate federal offense against the plaintiff. After all, an individual accused of "violating" a criminal statute is deemed innocent until proven guilty beyond a reasonable doubt. It would turn that principle upside down if plaintiffs could sue in the absence of an antecedent criminal conviction. Given that "Congress is understood to legislate against a background of common-law adjudicatory principles," Astoria Fed. Say. & Loan Assn. v. Solimino, 501 U.S. 104, 108 (1991), "the courts may take it as given that Congress has legislated with an expectation that the principle will apply except 'when a statutory purpose to the contrary is evident.'" Id. (quoting Isbrandtsen Co. v. Johnson 343 U.S. 779, 783 (1952)). In this case, however, the Court need not take anything "as given." Even if the statute's language were not clear—which it is—§ 2255's legislative history confirms that Congress intended to require a prior criminal conviction. While the history accompanying the wage of the original 1986 statute is sparse--§ 2255 was inserted with little debate into an omnibus appropriations bill for 1987, see Pub. L No. 99-500, 100 Stat. 1783 (1986)—the 1998 and 2006 extensions of § 2255 produced clear statements regarding Congress's intent. In 1998, for instance, Congress added additional predicate statutes to § 2255. Senator Grassley, who wrote -15- EFTA00221377 Case 9:09-cv-80591-KAM Document 29 Entered on FLSD Docket 05/26/2009 Page 16 of 36 the amendments, explained that "the sanctions provided for in my bill, such as ... the amended civil remedy section [would] provide much needed criminal enforcement tools" against convicted offenders. 134 Cong. Rec. 5372-01 (Feb. 1, 1998) (statement of Sen. Grassley). Not surprisingly, the House Report accompanying that legislation used classic terms associated with an adjudicated conviction in order to make clear that the bill targeted those convicted of the predicate crimes: "It is the intention of the Committee that only the offender who perpetrated the offense against the minor is liable for damages under this section." H.R. Rep. 105-557, P.L. 105-314: Protection of Children From Sexual Predators Act of 1998, at 23 (emphasis added). The legislative history of Masha's Law is even more explicit: What Masha's law does, and what is incorporated in here, is it ... makes sure that recovery on the part of a minor can take place when they become an adult, whether or not the guilty person is incarcerated. It raises from $50,000 to $150,000 the penalty for which that individual can be recompensated if in fact,, someone who depicts that picture and puts it on the Internet and uses them & caught and convicted. 152 Cong. Rec. S8012-02 at S8016 (July 20, 2006) (statement of Sen. Kerry). These references could hardly be clearer: for the statute to apply, the defendant must be arrested, tried, and found "guilty"—the "penalty" is available only "if, in fact, someone ... is caught and convicted." Id. As noted above, courts give special weight to the statements of a bill's sponsor. Corley, 129 S.Ct. at 1569. Given these clear statements from Senator Kerry, the only plausible conclusion is that § 2255 requires proof of an antecedent criminal conviction. That having been said, we do recognize that two district courts have held that plaintiffs may pursue a § 2255 action even without a prior conviction. Smith v. Husband. 376 F. Supp. 2d 603 (E.D. Va. 2005); Doe v, Liberatore, 478 F. Supp. 2d 742 (ED. Pa. 2007). But with due respect, these decisions overlook the relevant legislative history set forth above and rely instead on legislative history that is at best inapposite, and at worst irrelevant. In particular, Smith and Liberatore (which itself rested entirely on Smith) hinge on two pieces of legislative history -16- EFTA00221378 Case 9:09-cv-80591-KAM Document 29 Entered on FLSD Docket 05/26/2009 Page 17 of 36 relating to unenacted drafts of the legislation. See Smith, 376 F. Supp. 2d at 610-12• Liberatore, 478 F. Supp. 2d at 754-55. First, both courts found it significant that § 2255 initially was proposed as an amendment to the civil RICO statute, and in particular that an early draft of the legislation allowed "[a]ny person injured (1) personally by reason of a violation of [RICO] if such injury results from an act indictable under sections 2251 and 2252 of this title (relating to sexual exploitation of children) ... [to] sue therefor." Smith, 276 F. Supp. 2d at 611 (quoting 132 Cong. Rec. E1983-01 (June 5, 1986) (statement of Rep. Siljander during extension of remarks)); Liberatore, 478 F. Supp. 2d at 755 (relying on Smith, 276 F. Supp. 2d at 611). As Smith concluded, "[t]his language ... indicates that it was not Congress's intent that a conviction under the other sexual exploitation statutes be a prerequisite to the initiation of a civil suit for damages," because the draft bill grounded the cause of action on "an act indictable' under the statute" instead of one that actually produced an indictment and conviction. Smith, 276 F. Supp. 2d at 612. Smith's analysis draws precisely the wrong conclusion from this unenacted draft language. After all, the law Congress actually passed did not contain the language on which Smith and Liberatore relied. Instead, it allowed only by minors injured by an actual "violation" of the predicate statutes to sue—not those who merely alleged that a defendant could have been indicted (but was neither indicted nor convicted) for conduct that allegedly breached those statutes. It is odd to treat the removal of language from draft legislation as proof that the enacted bill carried the same meaning. Instead, courts draw the opposite inference. Russello 464 U.S. at 23-24 ("Where Congress includes limiting language in an earlier version of a bill but deletes it prior to enactment, it may be presumed that the limitation was not intended."). Smith and Liberatore also relied on excerpts from a CRS report analyzing another early draft of the legislation. Smith, 376 F. Supp. 2d at 611 (citing 132 Cong. Rec. E3242-02 (Sept. 23, 1986) (statement of Rep. Green during extension of remarks)); see also Liberatore, 478 F. -17- EFTA00221379 Case 9:09-cv-80591-KAM Document 29 Entered on FLSD Docket 05/26/2009 Page 18 of 36 Supp. 2d at 755 (citing Smith). According to Smith, the CRS report stated that "violations are to be determined by a preponderance of the evidence. Successful plaintiffs are entitled to recover the cost of the suit, including a reasonable attorney's fee, from those found guilty of a violation." Id. (quoting 132 Cong. Rec. E3242-02 (Sept. 23, 1986)). Smith thus held that "Whe analysis of that proposed draft indicated that a violation under § 2255 was to be proven only by a preponderance of the evidence," and "indicates that 18 U.S.C. § 2255 was intended to provide a remedy ... without requiring a criminal conviction." Id. at 611-12. Set aside that Congress eventually deleted from the bill the preponderance-of-the- evidence standard discussed in the CRS report; while that alone renders this portion of the CRS report irrelevant, the key point here is that Smith's analysis of the report is flawed on its own terms. To begin with, the fact that draft's proposed preponderance-of-the-evidence standard does not remotely prove that Congress sought to permit § 2255 actions in the absence of a predicate criminal conviction. To the contrary, requiring a prior criminal conviction is perfectly consistent with such a standard, since the plaintiff in a § 2255 case could simply introduce proof of the prior conviction and thereby discharge her burden of proving a violation under a preponderance-of-the-evidence standard. As a result, the (never adopted) preponderance-of-the- evidence standard on its own sheds no light on the question. Moreover, the Smith court overlooked the key line in its quotation from the CRS report— namely, the report's statement that the draft version of § 2255 would allow plaintiffs to recover penalties from "'those found guilty of a violation.'" Smith, 376 F. Supp. 2d at 611 (emphasis added) (quoting 132 Cong. Rec. E3242-02 (Sept. 23, 1986) (statement of Rep. Green during extension of remark