EFTA00028903.pdf

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK UNITED STATES OF AMERICA, v. GHISLAINE MAXWELL, Defendant. 20 Cr. 330 (AJN) REPLY MEMORANDUM OF GHISLAINE MAXWELL IN SUPPORT OF HER MOTION TO DISMISS COUNTS ONE THROUGH FOUR OF THE SUPERSEDING INDICTMENT AS TIME-BARRED Christian R. Everdell COHEN & GRESSER LLP Phone: Jeffrey S. Pagliuca Laura A. Menninger HADDON, MORGAN & FOREMAN P.C. Phone: Bobbi C. Stemheim Law Offices of Bobbi C. Stemheim Phone: Attorneys for Ghislaine Maxwell EFTA00028903 TABLE OF CONTENTS Page I. The 2003 Amendment Does Not Apply Retroactively 2 A. Step One: Congress Did Not Expressly Prescribe Retroactivity and Rejected a Proposal to Do So 3 1. Congress' explicit rejection of a retroactivity provision ends the inquiry at step one in Ms. Maxwell's favor. 3 2. Cases applying the 2003 Amendment retroactively are readily distinguishable. 5 3. The government cannot prevail at step one. 7 B. Step Two: Application of the 2003 Amendment to Ms. Maxwell's Alleged Offenses Would Have Impermissible Effects 8 II. Section 3283 Does Not Apply at All. 10 A. Section 3283 Applies Only to Offenses that Necessarily Entail the Sexual Abuse or Physical Abuse, or Kidnapping, of a Child 11 B. The Offenses Charged in Counts One Through Four Do Not Necessarily Entail the Sexual or Physical Abuse or Kidnapping of a Child 14 CONCLUSION 16 EFTA00028904 TABLE OF AUTHORITIES Page(s) Cases Bridges v. United States, 346 U.S. 209 (1953) 11, 13, 14 Burrage v. United States, 571 U.S. 204 (2014) 14 Cisneros v. Alpine Ridge Group, 508 U.S. 10 (1993) 7 Falter v. United States, 23 F.2d 420 (2d Cir. 1928) 10 Hughes Aircraft Co. v. U.S. ex reL Schumer, 520 U.S. 939 (1997) 8, 9 In re Enter prise Mortgage Acceptance Co., 391 F.3d 401 (2d Cir. 2004) 6, 9 Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827 (1990) 3 Kawashima v. Holder, 565 U.S. 478 (2012) Landgraf v. USI Film Products, 511 U.S. 244 (1994) Leocal v. Ashcroft, 11 passim 543 U.S. 1 (2004) 11 Martin v. Hadix, 527 U.S. 343 (1999) 6 Nijhawan v. Holder, 557 U.S. 29 (2009) 12, 13 Shular v. United States, 140 S. Ct. 779 (2020) 11, 14 Toussie v. United States, 397 U.S. 112 (1970) 8, 9, 10, 14 EFTA00028905 United States v. Ayo, 801 F. Supp. 2d 1323 (S.D. Ala. 2011) 12 United States v. Brown, 800 F. App'x 455 (9th Cir. 2020), cert. denied, No. 20-5064, -- S.Ct. , 2021 WL 78235 (Jan. 11, 2021) 5 United States v. Coutentos, 651 F.3d 809 (8th Cir. 2011) 13 United States v. Davis, 139 S. Ct. 2319 (2019) 11, 14 United States v. Gentile, 235 F. Supp. 3d 649 (D.N.J. 2017) 8, 9, 10 United States v. Jeffries, 405 F.3d 682 (8th Cir. 2005), cert. denied, 546 U.S. 1007 (2005) 5 United States v. Leo Sure Chief 438 F.3d 920 (9th Cir. 2006) 5 United States v. Miller, 911 F.3d 638 (1st Cir. 2018) passim United States v. Mogan, 393 F.3d 192 (D.C. Cir. 2004) 12 United States v. Nader, 425 F. Supp. 3d 619 (ED. Va. 2019) 6, 7, 9 United States v. Pierre-Louis, No. 16 Cr. 541 (CM), 2018 WL 4043140 (S.D.N.Y. Aug. 9, 2018) 5 United States v. Scharton, 285 U.S. 518 (1932) 8 United States v. Schneider, 801 F.3d 186 (3d Cir. 2015) 14 United States v. Sensi, No. 08 Cr. 253, 2010 WL 2351484 (D. Conn. June 7, 2010) 5 United States v. Vickers, No. 13 Cr. 128 (RJA) (HKS), 2014 WL 1838255 (W.D.N.Y. May 8, 2014) 15 Vernon v. Cassadaga Valley Cent. School Dist., 49 F.3d 886 (2d Cir. 1995) 9 iii EFTA00028906 Weingarten v. United States, 865 F.3d 48 (2d Cir. 2017) 5, 6, 7, 13 Statutes 18 U.S.C. § 2422(a) 2, 13, 14, 15 18 U.S.C. § 2423(a) 2, 13, 14, 15 18 U.S.C. § 3282 8, 12 18 U.S.C. § 3283 ("2003 Amendment") passim 18 U.S.C. § 3509(aX8) 14 18 U.S.C. § 3509(k) (1990) 8 8 U.S.C. § 1101(a)(43)(M)(i) 12 Pub. L. No. 101-647 8 Other Authorities Senator Leahy, Amber Legislation, Cong. Rec. 149:50, 55147 (2003) 3 iv EFTA00028907 Ghislaine Maxwell respectfully submits this Reply Memorandum in Support of her Motion to Dismiss Counts One Through Four of the Superseding Indictment as Time-Barred ("Motion"). As the government agrees in its opposition ("Opp."), the four Mann Act counts against Ms. Maxwell are timely only if the 2003 amendment to 18 U.S.C. § 3283 ("2003 Amendment") applies to the conduct charged therein. The 2003 Amendment expands the statute of limitations for an "offense involving" the sexual or physical abuse or kidnapping of a child. Because the 2003 Amendment does not apply retroactively, and because § 3283 does not apply to the offenses with which Ms. Maxwell is charged, the Mann Act counts should be dismissed. First, the 2003 Amendment cannot be applied retroactively because Congress did not intend it to apply retroactively. While the government cites several cases in which courts have applied the 2003 Amendment to pre-enactment conduct, the only court to do so after analyzing congressional intent under the two-step framework required by Landgraf v. US! Film Products, 511 U.S. 244 (1994)—and to even mention Congress' explicit rejection of a retroactivity provision in the 2003 Amendment—improperly excluded legislative history from its analysis. No court has applied the Landgraf framework, considered the legislative history, and still concluded that Congress intended the 2003 Amendment to overcome the presumption against retroactivity, as the government asks this Court to do. Because Congress' clear rejection of a retroactivity provision in the 2003 Amendment constitutes an express prescription of the amendment's temporal reach, the 2003 Amendment does not apply retroactively, and the Landgraf analysis ends at step one. Even if the analysis proceeds to step two, however, Landgraf does not permit the Court, without clear congressional EFTA00028908 direction to the contrary, to override the longstanding principle that criminal statutes of limitations are to be interpreted in favor of repose. Second, Ms. Maxwell's Motion should be granted for the separate and independent reason that § 3283 does not apply to 18 U.S.C. § 2422(a) or 18 U.S.C. § 2423(a), the two Mann Act provisions with which Ms. Maxwell is charged, because neither offense necessarily entails, as an element of the offense, the sexual or physical abuse or kidnapping of a child. While the government attempts to distinguish a long line of Supreme Court cases holding that an "offense" or "crime" that "involves" certain conduct means an offense that necessarily requires or entails that conduct, it fails to cite a single case outside the § 3283 context in which "offense involving" language has been interpreted otherwise—and the cases that have interpreted § 3283 as permitting a fact-based inquiry have failed to consider the voluminous Supreme Court authority to the contrary. Consideration of such authority compels application of § 3283 by reference to the elements of the offense at issue, and even under the definition of "sexual abuse" the government proposes, none of the elements of either § 2422(a) or § 2423(a) constitutes sexual abuse. I. The 2003 Amendment Does Not Apply Retroactively. The government does not dispute that Landgraf is the appropriate framework for determining whether a statute applies retroactively. Opp. 27. Under Landgraf, the first step is "to determine whether Congress has expressly prescribed the statute's proper reach"; if it has, there is no need to proceed further. 551 U.S. at 280. If it has not, the court must determine "whether the new statute would have retroactive effect, i.e., whether it would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed." Id. 2 EFTA00028909 As Ms. Maxwell's opening memorandum ("Mem.") has demonstrated, proper application of Landgraf prohibits retroactive application of the