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Case 1:20-cr-00330-PAE Document 204 Filed 04/16/21 Page 58 of 239

the resurrection of time-barred prosecutions, in violation of the Ex Post Facto Clause.14 But that
concern is entirely separate from extending the statute of limitations for live claims, which is what
Congress did here. Critically—and as discussed in greater detail below—there is no Ex Post Facto
Clause issue in this case, because the statute of limitations for Counts One through Four had not
yet expired when the limitations period was extended in 2003.15

Accepting the defendant’s argument would undermine Congress’s plain purpose in
extending the limitations period. In 1990, 2003, and 2006, Congress extended—and ultimately
abolished—the statute of limitations to ensure that prosecutors could seek justice for child sex
abuse victims who come forward or identify their abusers after a delay. Applying the 2003 statute
only prospectively subverts that purpose by exempting all past offenders. According to the

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14 Moreover, the fact that Congress considered, but ultimately omitted, retroactivity language does
not end the Landgraf inquiry, as the defendant suggests. Indeed, Landgraf itself makes this clear.
In that case, the statute at issue had a predecessor, which contained a retroactivity provision. That
version was vetoed by the President, and the final version of the statute omitted the retroactivity
provision. As the Supreme Court explained, “[t]he omission of the elaborate retroactivity
provision of the 1990 bill—which was by no means the only source of political controversy over
that legislation—is not dispositive because it does not tell us precisely where the compromise was
struck in the 1991 Act.” Landgraf, 511 U.S. at 256. Indeed, “[i]t [was] entirely possible—indeed,
highly probable—that, because it was unable to resolve the retroactivity issue with the clarity of
the 1990 legislation, Congress viewed the matter as an open issue to be resolved by the courts.”
Id. at 261.

15 Minor Victim-1 and Minor Victim-2 were both younger than 25 in 2003, when Congress
extended the limitations period. Minor Victim-3 was not, but this does not alter the inquiry,
because the Indictment does not contain any counts that relate to Minor Victim-3 alone. Instead,
she is one of multiple victims of the conspiracies charged in Counts One and Three. The inclusion
of the overt acts relating to Minor Victim-3 in an otherwise timely conspiracy count does not
render that count untimely. To the contrary, for conspiracy counts, the Government is only
required to prove that one overt act in furtherance of the conspiracy occurred within the limitations
period. United States v. Ben Zvi, 242 F.3d 89, 97 (2d Cir. 2001). Thus, the defendant is incorrect
to assert that the government is “barred” from prosecuting the defendant for any offense against
Minor Victim-3. (Def. Mot. 2 at 10, n.3). Instead, there is no statute of limitations issue here so
long as the jury is properly instructed at trial that it must find at least one overt act within the
limitations period—i.e., one overt act that does not relate to Minor Victim-3.

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