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Case 1:20-cr-00330-PAE Document 204 Filed 04/16/21 Page 61 of 239

much violence is done to our instinctive feelings of justice and fair play. For the state to assure a man that he has become safe from its pursuit, and thereafter to withdraw its assurance, seems to most of us unfair and dishonest. But, while the chase is on, it does not shock us to have it extended beyond the time first set, or, if it does, the stake forgives it.

Falter v. United States, 23 F.2d 420, 425-26 (2d Cir. 1928). The distinction between statutes that revive expired prosecutions and those that extend existing limitations periods has deep roots in established jurisprudence. It is well-settled that the Ex Post Facto Clause prohibits laws that revive time-barred prosecutions, but permits laws that retroactively extend limitations periods. Stogner v. California, 539 U.S. 607, 632 (2003) (holding that the Ex Post Facto Clause does not “prevent the State from extending time limits for . . . prosecutions not yet time barred.”); United States v. Morgan, 113 F.3d 1230, 1997 WL 268712, at *7 (2d Cir. 1997) (unpublished opinion) (“The long-standing rule in this circuit is that Congress has the power to extend the period of limitations without running afoul of the ex post facto clause, provided the original period has not already run.”) (citing Falter, 23 F.3d at 425-26). And other circuits have emphasized this distinction in the context of Section 3283. Leo Sure Chief, 438 F.3d, at 922-25; Jeffries, 405 F.3d 685.

Read together, the Second Circuit’s decisions in Weingarten, Vernon, Enterprise, and Falter establish that Congress may retroactively extend the limitations period for still-viable prosecutions. That is precisely what has occurred here, because the charges in the Indictment were still timely when the 2003 amendment extended the limitations period. As a result, applying Section 3283 in this case does not create impermissible retroactive effects. Therefore, step two of Landgraf is satisfied, and Section 3283 applies retroactively.

Resisting this conclusion, the defendant asserts that, in the criminal context, Landgraf’s second step provides protections beyond the Ex Post Facto Clause. But that is not the law. See Nader, 425 F. Supp. 3d at 630 (rejecting the argument that “there is ‘daylight’ between the Ex Post

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