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
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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
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As Ms. Maxwell's opening memorandum ("Mem.") has demonstrated, proper application
of Landgraf prohibits retroactive application of the 2003 Amendment. Congressional intent
could not be clearer; Congress considered and expressly rejected a provision that would have
made the 2003 Amendment retroactive. That ends the Landgraf inquiry at step one. Even if the
inquiry proceeds to step two, however, the government has failed to adequately rebut Ms.
Maxwell's showing that application of the 2003 Amendment here would have impermissible
retroactive effects.
A. Step One: Congress Did Not Expressly Prescribe Retroactivity and Rejected
a Proposal to Do So.
1. Congress' explicit rejection of a retroactivity provision ends the
inquiry at step one in Ms. Maxwell's favor.
"[W]here the congressional intent is clear, it governs." Landgraf, 511 U.S. at 264
(quoting Kaiser Aluminum & Chem. Cap. v. Bonjorno, 494 U.S. 827, 837 (1990)). As Ms.
Maxwell's opening memorandum demonstrated, congressional intent with respect to the
retroactive application of the 2003 Amendment is clear: the House version of the bill included
an express retroactivity provision, the Senate version contained no retroactivity provision, and, in
the words of one of the bill's co-sponsors, the House-Senate conference "agreed to drop
language from the original House-passed bill that would have extended the limitations period
retroactively." Senator Leahy, Amber Legislation, Cong. Rec. 149:50, S5147 (2003). The Court
need look no further. Such an unambiguous expression of congressional intent establishes
conclusively that the 2003 Amendment is not retroactive.
The government argues that Congress' explicit rejection of a retroactivity provision is not
probative, because according to Senator Leahy's floor statement, the decision was grounded in
concerns about the revival of time-barred charges rather than the extension of live charges, and at
least some of the charges here were live at the time of the 2003 Amendment. But to the extent
3
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that Congress' rejection of the retroactivity provision was motivated by such concerns,'
Congress nonetheless chose to address those concerns by eliminating the retroactivity provision
altogether, rather than simply modifying it to prohibit the revival of time-barred charges. If
Congress had intended to distinguish between live charges and time-barred charges, it could
easily have done so. Its decision to drop the provision completely demonstrates a clear intent
that the 2003 Amendment not be applied retroactively. The Court may not override that clear
intent merely because doing so may have been a broader measure than necessary to address the
concerns Senator Leahy articulated.2
The government also contends that heeding Congress' specific intent not to make the
2003 Amendment retroactive would "undermine Congress's plain purpose" in enacting it—Le.,
to extend the limitations period "to ensure that prosecutors could seek justice for child sex abuse
victims who come forward or identify their abusers after a delay." See Opp. 31. But statutory
amendments, by nature, are designed to remedy perceived deficiencies in existing law, and thus a
decision not to apply any amendment retroactively will typically limit, or "undermine," the
effectuation of that purpose. For that reason, as the Supreme Court acknowledged in Landgraf,
an amendment's purpose is immaterial to a retroactivity analysis:
While Senator Leahy's floor statement confirms that Congress' rejection of the retroactivity provision was
intentional, his statement as to why the provision was rejected cannot be ascribed to other members of Congress.
2 The government implicitly asks the Court to disregard the voluminous authority emphasizing the significant weight
to be given congressional consideration and explicit rejection of a proposed statutory provision (see Mem. 7.8),
relying solely on the Supreme Court's treatment in Landgraf of an omission from the comprehensive Civil Rights
Act of 1991 of an "elaborate retroactivity provision" that had been included in a vetoed civil rights bill passed by a
prior Congress. See Opp. 31 n.14 (quoting Landgraf, 511 U.S. at 256). That omission is not analogous. There was
no indication in Landgraf that Congress had even considered, let alone rejected, such a provision in the legislation it
ultimately enacted. Moreover, the provision from the prior Congress' bill was indeed "elaborate": it did not simply
prescribe retroactivity, as the provision stricken from the 2003 Amendment would have done, but assigned a series
of different effective dates to different subsections. Landgraf, 511 U.S. at 255 n.8. The absence of such a detailed
scheme from subsequent legislation, passed by a subsequent Congress, could not be reasonably interpreted as a clear
reflection of congressional intent regarding retroactivity, and there is no indication in the opinion that any party
argued otherwise.
4
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It will frequently be true, as petitioner and amid forcefully argue here, that
retroactive application of a new statute would vindicate its purpose more fully.
That consideration, however, is not sufficient to rebut the presumption against
retroactivity. Statutes are seldom crafted to pursue a single goal, and
compromises necessary to their enactment may require adopting means
other than those that would most effectively pursue the main goal.
Landgraf 511 U.S. at 285-86 (emphasis added). Thus, it is not anomalous at all that Congress
would "exempt[] all past offenders" from the new limitations period, as the government asserts
(Opp. 31); to the contrary, the law presumes that past conduct is exempt from legislation. Here,
Congress' clear intent that the 2003 Amendment not be retroactive resolves the Landgraf inquiry
in Ms. Maxwell's favor at step one.
2. Cases applying the 2003 Amendment retroactively are readil
distinguishable.
While the government cites several cases that have applied the 2003 Amendment
retroactively (Opp. 26-27), most of those cases analyzed the issue under the Ex Post Facto
Clause and gave little, if any, consideration to congressional intent regarding retroactivity (as
opposed to the intent of the amendment itself). In all but one of those cases, no Landgraf
analysis was performed, and it does not appear that Congress' explicit rejection of a retroactivity
provision was considered or even raised.; But the government does not dispute that Landgraf is
the appropriate framework—nor can it, given the Second Circuit's acknowledgment that the
retroactivity of the 2003 Amendment must be analyzed under Landgraf. Weingarten v. United
States, 865 F.3d 48, 54-58 (2d Cir. 2017).
3 No Landgraf analysis was performed, nor was Congress' rejection of the retroactivity provision discussed, in
United States v. Brown, 800 F. App'x 455, 461 (9th Cir. 2020) (discussing issue in a single sentence and referring
only to the intent of the amendment generally), cert. denied, No. 20.5064, S.Ct. —, 2021 WL 78235 (Jan. 11,
2021); United States v. Leo Sure Chief 438 F.3d 920, 924 (9th Cir. 2006) (discussing only the intent of the
amendment generally); United States v. Jeffries, 405 F.3d 682, 684-85 (8th Cir. 2005) (no Landgrafanalysis or
consideration of legislative history), cat denied, 546 U.S. 1007 (2005); United States v. Pierre-Louis, No. 16 Cr.
541 (CM), 2018 WL 4043140, at *5.6 (S.D.N.Y. Aug. 9, 2018) (addressing only Ex Post Facto clause); or United
States v. Sensi, No. 08 Cr. 253, 2010 WL 2351484, at *3 (D. Conn. June 7, 2010) (same).
5
EFTA00028912

The only exception is United States v. Nader, 425 F. Supp. 3d 619 (E.D. Va. 2019). In
Nader, the court performed a Landgraf analysis in analyzing the retroactivity of the 2003
Amendment, and it appears to be the only previous case in which Congress' explicit rejection of
a retroactivity provision in the 2003 Amendment has even been mentioned. In Nader, however,
the court noted the legislative history of the 2003 Amendment but held that only the text of the
amendment was relevant to step one of Landgraf 425 F. Supp. 3d at 627 (finding legislative
history arguments "misplaced within the first step of the Landgraf analysis, which asks only
whether the statute at issue contains ... language unequivocally delineating the time period to
which it applies").
Nader's exclusion of legislative history from the Landgrafanalysis4 cannot be reconciled
with the Supreme Court's applications of Landgraf-or, for that matter, with Landgraf itself.
See, e.g., Landgraf, 511 U.S. at 264 (considering legislative history); Martin v. Hadix, 527 U.S.
343, 355-57 (1999) (examining "structure and legislative history" as part of first Landgraf step).
And as the government acknowledges, "the Second Circuit has considered both the text of the
statute and the legislative history" at the first Landgraf step. Opp. 28 (citing In re Enterprise
Mortgage Acceptance Co., 391 F.3d 401, 406-08 (2d Cir. 2004)). Thus, Nader is not persuasive
authority.
In short, no court has considered Congress' explicit rejection of a retroactivity provision
in performing a Landgraf analysis of the retroactivity of the 2003 Amendment. In fact, the
government cites only three cases that have analyzed the 2003 Amendment under Landgraf at
all: the Second Circuit and First Circuit opinions in Weingarten and United States v. Miller, 911
F.3d 638 (1st Cir. 2018), respectively, which were ineffective assistance of counsel cases and
Although the court in Nader explicitly characterized legislative history arguments as "misplaced" within step one
Landgraf it also omitted them from step two of its Landgraf analysis. Nader, 425 F. Supp. 3d at 627-32.
6
EFTA00028913

thus did not decide the issue (and in which Congress' rejection of the retroactivity provision was
not discussed), and Nader, in which the court incorrectly excluded legislative history from its
Landgraf analysis. If Landgraf is correctly applied, and legislative history is given its proper
weight in the analysis, it is clear from Congress' rejection of the retroactivity provision that it did
not intend the 2003 Amendment to be retroactive. Counts One through Four are therefore time barred.
3. The government cannot prevail at step one.
Meanwhile, the government's claim that it should prevail at step one can be easily
dispensed with. The government relies on the language in the 2003 Amendment that "[Igo
statute of limitations that would otherwise preclude prosecution" of a child sexual offense "shall
preclude" prosecution during the life of the victim. 18 U.S.C. § 3283 (2003). While the
government argues that this language refers to the pre-amendment version of § 3283, the Second
Circuit recognized in Weingarten that "there is a more natural interpretation of that phrase that
does not address retroactivity—that Congress intended the language in the 2003 version of
§ 3283 to clarify that the statute prescribes a statute of limitations for applicable offenses that is
different from the default five-year limitations period under federal law." Weingarten, 865 F.3d
at 55. See also Miller, 911 F.3d at 644 (suggesting that "otherwise preclude" language "may
refer only to preclusion by the five-year federal default statute of limitations"); Nader, 425 F.
Supp. 3d at 626 (interpreting same language to "merely `signal the drafter's intention that the
provisions . . . override conflicting provisions of any other section,'" rather than the pre amendment version of § 3283) (quoting Cisneros v. Alpine Ridge Group, 508 U.S. 10, 18
(1993)).
This interpretation is bolstered further by the presence of the same "[n]o statute of
limitation[s] that would otherwise preclude" language in the 1990 statute that originally created
7
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the expanded statute of limitations for child sex abuse crimes. See Opp. Mem. 24 (quoting
Crime Control Act of 1990, Pub. L. No. 101-647, tit. II, § 225(a), 104 Stat. 4789, 4798 (codified
at 18 U.S.C. § 3509(k) (1990)). In 1990, "the only existing limitations period to which the
language could have referred was the [five-year] default limit set forth in [18 U.S.C. § 3282]."
Miller, 911 F.3d at 644. That is the logical reading of the same provision here.
The government cannot prevail on step one. If step one is not resolved in Ms. Maxwell's
favor, the inquiry must proceed to step two.
B. Step Two: Application of the 2003 Amendment to Ms. Maxwell's Alleged
Offenses Would Have Impermissible Effects.
Even if the Landgraf inquiry were to proceed to the second step—whether retroactive
application would have impermissible effects-Ms. Maxwell should prevail. In arguing
otherwise, the government effectively claims that in the retroactivity context, Landgraf permits
the Court to ignore the bedrock principle that "criminal limitations statutes are `to be liberally
interpreted in favor of repose."' Toussie v. United States, 397 U.S. 112, 115 (1970) (quoting
United States v. Scharton, 285 U.S. 518, 522 (1932)). But nothing in Landgraf, a civil case,
purports to limit that principle, let alone abrogate it.
The government asserts that no court has held that retroactively extending a filing period
for live charges is a presumptively impermissible retroactive effect under Landgraf (Opp. 35),
but that is not so. In United States v. Gentile, 235 F. Supp. 3d 649 (D.N.J. 2017), the court held
that it would be impermissible to retroactively extend a statute of limitations for live charges
"absent clear legislative intent" to apply the expanded limitations retroactively. Id. at 655. In
doing so, the court read Landgraf in conjunction not only with Toussie but also with Hughes
Aircraft Co. v. U.S. ex rel. Schumer, 520 U.S. 939 (1997), a post-Landgraf opinion in which the
Supreme Court reiterated the law's presumption against retroactivity and reiterated that "we
8
EFTA00028915

apply this time-honored presumption unless Congress has clearly manifested its intent to the
contrary." Gentile, 235 F. Supp. 2d at 654 (quoting Hughes, 520 U.S. at 946 (emphasis added
by court)).5 The First Circuit, addressing the issue on an ineffective assistance of counsel of
claim (and thus not reaching a merits decision), issued a similar caution in the specific context of
the 2003 Amendment:
[W]hen Congress has sounded an uncertain trumpet, a court ought to refrain from
applying an enlarged criminal statute of limitations retrospectively.... Seen in
this light, Toussie potentially alters the second step in the Landgraf approach.
Miller, 911 F.3d at 645.6
By contrast, the government cites only one case—Nader—in which a court has held that
the application of a criminal statute of limitations to pre-enactment conduct is permissible under
the second step of Landgraf. Like the government here, however, the court in Nader offered no
path to reconciling Landgraf with Toussie. Instead, it applied Landgraf, a civil case, in a manner
that interprets Toussie out of existence in the retroactivity context, without any suggestion from
the Supreme Court that it intended such an effect. The opinions in Miller and Gentile, in
acknowledging the need to read Landgraf and Toussie in harmony, provide the correct legal
framework for the application of the second step of Landgraf This is particularly so in light of
Congress' explicit rejection of a retroactivity provision in the 2003 Amendment, a factor not
considered in Miller and absent from Gentile.
In arguing that "Congress may retroactively extend the limitations period for still-viable
prosecutions" (Opp. 34) (emphasis added), the government completely misses the point. There is
5 The government's attempt to discredit Gentile on the ground that it relied in part on a pre-Landgraf opinion (Opp.
36) rings hollow. The court made clear that it was applying Landgraf(in conjunction with Toussie and Hughes).
Gentile, 235 F. Supp. at 654-55.
6 For this reason, the Second Circuit's applications of Landgmf in Vernon v. Cassadaga Valley Cent. School Dist,
49 F.3d 886 (2d Cir. 1995), and In re Enterprise Mortgage Acceptance Co., 391 F.3d 401 (2d Cir. 2004)—both of
which involved civil statutes of limitations—do not resolve the issue.
9
EFTA00028916

no dispute that Congress could have amended § 3283 in 2003 to extend the limitations period for
live charges; had it done so explicitly, the government would prevail on the first Landgraf step.'
Rather, the second Landgraf step asks whether the effects of retroactive application of a statute
are such that the Court, in the absence of an express retroactivity provision, should presume that
Congress intended to apply the statute retroactively. See Landgraf, 511 U.S. at 283 (framing
issue as whether a law is "the kind of provision that [applies] to events antedating its enactment
in the absence of clear congressional intent").8 As both Miller and Gentile recognize, Toussie
suggests that, in the context of a criminal statute of limitations, Congress should not be presumed
to have intended retroactive application absent a clear expression of such intent, and the Court
should not reach such a conclusion here.
II. Section 3283 Does Not Apply at All.
Ms. Maxwell's Motion should be granted for the separate and independent reason that
regardless of whether the 2003 Amendment can be applied retroactively, § 3283 does not apply
to the offenses with which Ms. Maxwell is charged. Neither enticement of an individual to travel
nor transportation of a minor is an "offense involving" the sexual or physical abuse or
kidnapping of a child. The government fails to rebut the long line of cases interpreting "offense
involving" language to refer to offenses that necessarily entail particular conduct, and the
7 For this reason, the government's invocation of Falter v. United States, 23 F.2d 420 (2d Cir. 1928)-a case
decided decades before both Landgraf and Toussie—adds nothing to the analysis. While the government cites
Falter for the uncontroversial proposition the law treats the revival of time-barred criminal charges more harshly
than the extension of live charges—indeed, as the government points out, the former raises issues under the Ex Post
Facto Clause—it sheds no light on the issue of statutory interpretation here, particularly in light of Landgraf and
Toussie.
S
The fact that the inquiry into a statute's retroactive effects is the second step of Landgraf, rather than the first,
demonstrates that Landgmf is not an inquiry into a statute's constitutionality. If the Landgraf analysis were simply
an inquiry into whether the Ex Post Facto clause permits Congress to apply a criminal statute of limitations
retroactively, as the government contends (Opp. 34-35), the first step would have to be read out of Landgraf
entirely. Otherwise, Congress could expressly prescribe an unconstitutional retroactive application of a statute,
thereby ending the analysis at step one before the court ever addressed the statute's constitutionality.
10
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offenses with which Ms. Maxwell is charged do not require the sexual or physical abuse or
kidnapping of a child.
A. Section 3283 Applies Only to Offenses that Necessarily Entail the Sexual
Abuse or Physical Abuse, or Kidnapping, of a Child.
As demonstrated in Ms. Maxwell's opening brief, the Supreme Court has held repeatedly
and consistently that an "offense" or "crime" that "involves" certain conduct means an offense
that necessarily entails or requires that conduct. See, e.g., Shular v. United States, 140 S. Ct.
779, 782 (2020) ("a court should look to the state offense's elements" rather than case-specific
facts); United States v. Davis, 139 S. Ct. 2319, 2328 (2019) (rejecting argument that "offense
that ... involves" provision permitted court to look to case-specific facts, even if necessary to
save provision from unconstitutional vagueness); Kawashima v. Holder, 565 U.S. 478, 484
(2012) (interpreting "offenses that involve fraud or deceit" to mean "offenses with elements that
necessarily entail fraudulent or deceitful conduct") (internal punctuation omitted); Leocal v.
Ashcroft, 543 U.S. 1, 7 (2004) (stating that "offense that ... involves" language "requires us to
look to the elements and the nature of the offense ...rather than to the particular facts" at issue);
Bridges v. United States, 346 U.S. 209, 217 n.15, 221 (1953) (limiting extended statute of
limitations for "any offense [] involving fraud or attempted fraud against the United States" to
"offenses in which defrauding or attempting to defraud the United States is an essential
ingredient of the offense charged"). The government's attempt to limit this clear line of cases is
unpersuasive.
The government claims that a "necessarily entails" approach (or, as the government
describes it, a "categorical" approach) is "only used in settings like sentencing and immigration,
where a court is asked to evaluate the conduct from a prior conviction." Opp. 39. While one
would expect the government to support such a statement with citations to Supreme Court cases
11
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outside the sentencing and immigration context in which the "necessarily entails" approach has
been rejected, it fails to offer any.9 Nor does the government respond to the case law cited by
Ms. Maxwell in which courts have interpreted "offense involving" language in a venue statute,
which has nothing to do with sentencing, immigration, or prior convictions, to refer to the
elements of the offense. See, e.g., United States v. Morgan, 393 F.3d 192, 198 (D.C. Cir. 2004)
("The most natural reading of § 3237(a) ¶ 2 is to construe `any offense involving' by reference to
the elements of the offense at issue.") (emphasis in original); United States v. Ayo, 801 F. Supp.
2d 1323, 1331 (S.D. Ala. 2011) ("The Eleventh Circuit has employed the second paragraph of
Section 3237(a) when such transportation, or use of the mails, is an element of the offense
charged."). The arbitrary limitations the government seeks to impose on the "necessarily entails"
approach simply do not exist.
The Supreme Court's opinion in Nijhawan v. Holder, 557 U.S. 29 (2009)—the only
Supreme Court case the government cites in which the Court applied a fact-based approach to an
"offense involving" statute—does not break this line of cases at all. In Nijhawan, the statutory
provision at issue referred to "an offense that . . . involves fraud or deceit in which the loss to the
victim or victims exceeds $10,000." 557 U.S. at 32 (quoting 8 U.S.C. § 1101(a)(43)(M)(i))
(emphasis added by Court). The issue before the Court was not whether the statute required
"fraud or deceit" to be an element of the underlying offense, but whether the referenced
monetary threshold was required to be an element. The Court held that it was not, reasoning that
"[t]he words 'in which' (which modify `offense') can refer to the conduct involved `in' the
9 According to the government, the ostensible rationale for the "necessarily entails" approach—avoiding the need
for courts to examine the facts of prior convictions—is not present in the § 3283 context. But a fact-based approach
poses a different practical obstacle in the statute of limitations context. Under a fact-based approach here, for
example, in order to obtain the benefit of the expanded limitations period, the government would be required to
prove conduct (i.e., sexual abuse) that is not an element of an offense; a jury would be required to find not only that
Ms. Maxwell committed the offenses with which she is charged but also that her offenses "involve[] . the sexual
or physical abuse ... of a child"; and only after the jury has returned its verdict would it be known which statute of
limitations—§ 3283 or the default provision under § 3282—applies to this prosecution.
12
EFTA00028919

commission of the offense of conviction, rather than to the elements of the offense." Id. at 39
(emphasis added by Court). Because § 3283 contains no such modification to the words "offense
involving," Nijhawan is entirely consistent not only with the Supreme Court cases that interpret
"offense involving" language as referring to elements of the offense, but also with a similar
interpretation of the language as it appears in § 3283.1°
The Eighth Circuit's opinion in United States v. Coutentos, 651 F.3d 809 (8th Cir. 2011),
squares perfectly with this approach. In Coutentos, the court held that § 3283 did not apply to a
charge of possession of child pornography, even though the facts of the case involved conduct
that went beyond the elements of child pornography and, according to the court, constituted
sexual abuse. 651 F.3d at 817. The government's attempt to distinguish Coutentos on the
ground that "this case does not involve the possession of child pornography" (Opp. 41) misses
the point: In determining whether § 3283 applied, the court did not consider evidence of actual
sexual abuse and instead confined its focus to the elements of the offense of possession of child
pornography. In other words, it used the "necessarily entails" approach. Similarly, § 3283
requires the Court here to look only to the elements of § 2422(a) and § 2423(a), and to disregard
allegations of conduct beyond those elements.
Finally, the government attempts to distinguish Bridges, in which the Supreme Court
used the equivalent of a "necessarily entails" approach specifically with respect to a statute of
limitations, and argues that Bridges is an outlier based on its legislative history. But the
government fails to identify a single statute of limitations other than § 3283 in which a fact 10 The government cites the Second Circuit's statement in a footnote in Weingarten that the "offense involving"
language is "equally consistent with applying a fact-based approach." Opp. 39-40 (quoting Weingarten, 865 F.3d at
60 n.I I). However, Weingarten relied exclusively on Nijhawan for that proposition; like the government, it cited no
case in which a fact-based approach had been used to apply an "offense involving" statute other than § 3283. In any
event, the Second Circuit did not hold that a fact-based approach applies to § 3283; it held only, in the context of an
ineffective assistance claim, that it was "not obvious" which approach applies. Weingarten, 865 F.3d at 60.
13
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based approach has been applied, let alone one that uses "offense involving" language. I I Given
the Supreme Court's consistent interpretation of such language to require a "necessarily entails,"
elements-based approach, § 3283 should be similarly interpreted—particularly given the
obligation under the rule of lenity to construe any ambiguity in criminal statutes in favor of the
defendant, Burrage v. United States, 571 U.S. 204, 216 (2014), and the principle that "criminal
limitations statutes are to be liberally interpreted in favor of repose." Toussie, 397 U.S. at 115
(internal quotations and citation omitted).
B. The Offenses Charged in Counts One Through Four Do Not Necessarily
Entail the Sexual or Physical Abuse or Kidnapping of a Child.
The government appears to argue that even under the "necessarily entails" approach,
§ 3283 applies to the Mann Act offenses at issue here, because § 2422(a) and § 2423(a)
somehow necessarily entail the sexual abuse of a child. The government bases this argument on
its contention that the applicable definition of "sexual abuse" is the definition found at 18 U.S.C.
§ 3509(a)(8), because that definition "includes the employment, use, persuasion, inducement,
enticement, or coercion of a child to engage in, or assist another person to engage in, sexually
explicit conduct or the rape, molestation, prostitution, or other form of sexual exploitation of
children, or incest with children." 18 U.S.C. § 3509(a)(8). But even under such an expansive
definition, neither § 2422(a) nor § 2423(a) necessarily entails the sexual abuse of a child.
Section 2422(a) does not necessarily entail any act concerning a child, let alone the
"employment, use, persuasion, inducement, enticement, or coercion of a child" to engage in any
sex-related conduct. Rather, § 2422(a) requires only the enticement of an individual—of any
" The government also cites United States v. Schneider, 801 F.3d 186 (3d Cir. 2015), in which the court rejected the
defendant's comparison of § 3283 to the statute in Bridges. To the extent that the Third Circuit rejected a
"necessarily entails" approach to § 3283, it appears to have done so without considering the line of Supreme Court
cases interpreting the "offense involving" language as requiring such an approach—a line that has since expanded to
include Davis and Shular.
14
EFTA00028921

age—to travel with the requisite intent. 18 U.S.C. § 2422(a). Section 2423(a) requires only the
transportation of a child with the requisite intent, 18 U.S.C. § 2423(a); it does not necessarily
entail "the employment, use, persuasion, inducement, enticement, or coercion of a child" to do
anything other than travel. If a defendant entices an adult to travel for the purpose of engaging in
unlawful sexual activity, a § 2422(a) offense has been committed, but no sexual abuse of a child
has occurred. If a defendant transports a minor with the intent (unbeknownst to the minor) that
the minor will engage in sexual activity, no sexual activity occurs, and there is no "employment,
use, persuasion, inducement, enticement, or coercion" to engage in sexual activity, a § 2423(a)
offense has been committed, but no sexual abuse of a child has occurred.
While the government cites several cases in which courts have found § 3283 applicable to
particular statutes, it cites only one case in which either a § 2422(a) or § 2423(a) offense has
been held to involve "sexual abuse" within the meaning of § 3283. In United States v. Vickers,
No. 13 Cr. 128 (RJA) (HKS), 2014 WL 1838255 (W.D.N.Y. May 8, 2014), the court held that a
§ 2423(a) offense involved sexual abuse, but it did not hold that § 2423(a) necessarily entails
sexual abuse; instead, the court used a fact-based approach. Id. at *11 ("defendant Vickers is
charged with transportation of a minor in violation of [§ 2423(a)] and it is alleged that the
defendant did have sexual contact with Victim I") (emphasis added). No court has held that
either the enticement of an individual to travel or the transportation of a minor necessarily entails
"sexual abuse" within the meaning of § 3283. It does not. The government therefore cannot and
should not prevail.
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CONCLUSION
For the reasons set forth herein, Ms. Maxwell respectfully requests that Counts One
through Four be dismissed.
Dated: March 15, 2021
New York, New York
Respectfully submitted,
Is/ Christian R. Everdell
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. Sternheim
Phone:
Attorneys for Ghislaine Maxwell
16
EFTA00028923

CERTIFICATE OF SERVICE
I hereby certify that on March 15, 2021, I served by email, pursuant Rule 2(B) of the
Court's individual practices in criminal cases, the within memorandum and any accompanying
exhibits upon the following:
U.S. Attorney's Office, SDNY
Is/ Christian Everdell
EFTA00028924