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Case 22-1426, Document 59, 02/28/2023, 3475902, Page69 of 113

1. Congress evinced an intent that § 3283 operate only prospectively

The first step of Landgraf asks whether Congress “expressly prescribed” the
temporal reach of the 2003 amendment. Here, Congress “expressly prescribed”
that the 2003 Amendment was to apply prospectively only.

To begin with, the text of the 2003 amendment omits any mention of
retroactivity. If anything, it points in the opposite direction. This section twice
employs forward-looking modal verbs: “would” and “shall.” See 18 U.S.C. 3283
(“No statute of limitations that would otherwise preclude prosecution for an
offense involving the sexual or physical abuse, or kidnaping, of a child under the
age of 18 years shall preclude such prosecution during the life of the child, or for
ten years after the offense, whichever is longer.”); see also Appalachian Power Co.
v. E.P.A., 249 F.3d 1032, 1057 (D.C. Cir. 2001) (characterizing the phrase “would
emit” as a “future conditional phrase”); Salahuddin v. Mead, 174 F.3d 271, 275 (2d
Cir. 1999) (“There is no doubt that ‘shall’ is an imperative, but it is equally clear
that it is an imperative that speaks to future conduct”); Martin v. Hunter’s Lessee,
14 U.S. 304, 314 (1816) (“The word shall, is a sign of the future tense....”). This
language indicates that § 3283 looks into the future, not the past.

Even if the text of § 3283 were unclear about its temporal reach, we would
not proceed immediately to step two of Landgraf. Instead, courts must also
“examin[e] legislative history to determine congressional intent at the first stage of

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