TED STATES CT COURT-8.7 SOUTHERN OF YORK-8.3 TED STATES Defend-11.5 ant Cr MEMORANDU-8.6 ISLAINE MAXWELL IN SUPP11.4 ORT TION TO DISMISS COUNTS ONE THROU12.4 THE ERSEDING8.4 CTMENT AS TIME-BARRED Mark Cohen Christian Everdell COHEN GRESSER Third Avenue-6.5 New York NY Phone Pag9.7 liuc-6.3 a A HADDON MORG-8.3 AN FOREMAN P.C East 10th Avenue-6.3 Denver Color-7.6 ado Phone obbi Sternheim fices of obbi Sternheim st 19th Street 4th New rk Phone Attorneys for Ghislaine Maxwell Case Document Filed Page of i TABLE CONTENT8.4 age-6 PRE-9 NARY STAT-9 ENT SUMMARY ARGUMENT I The Amendment oes Not roacti-12.3 A Step One Cong9.2 ss did not pressl-12.8 cribe troactivit-12.8 and ected a proposal to do so Step Two Application of the Amendment Ms well alleg9.6 ed offenses would ve ermissible effe-6.2 II10 Section Does Not Appl-12 at A Section applies only19.4 to enses that cessa-6.4 entail the ual or ical abuse or kidnap-10.2 ping9.8 of child The offens-11.9 es ed in Counts One throug9.1 do not necess-11.9 entai-12.9 the ual or ical use or kidnappin-10.6 of a ild CONC-13 U2 Case Document Filed Page of ii TABLE AUTHORITIES7.1 Cases Bowen Georg-10.5 etown Univ Hosp U.S Bridges United U.S Bureau of Alcohol Tobacco Firearms Labor Relations Auth U.S Burrage United States U.S Comm Clark U.S Food and Drug Admin Brown illiamson Tobacco Corp U.S Hudson Valley Black ss F6 3d 2d Cir Kaiser Aluminum Corp Bonjorno U.S Kawashima Holder U.S Landgraf USI Film Prod U.S ssim Lattab Ashcroft,10.4 F6 3d 1st Cir Leocal Ashcroft U.S Martin U.S Shular United States Ct Case Document Filed Page of Stogner California,10.4 U.S Thom Ashcroft F6 3d 2d Cir Toussie United States U.S ssim United States Broxme-6.5 F6 3d 2d Cir United States Coutentos F6 3d 8th Cir United States Davis Ct United States Gentile,-10.4 F6 Supp 3d United States Lawson F6 2d 2d Cir United States Leo Sure-6.4 Chief F6 3d 9th Cir United States McElvai-12.7 U.S United States Miller F6 3d 1st Cir United States Morgan,-10.3 F6 3d D.C Cir United States Napolitano F6 2d 2d Cir United States Pierre-L-14.4 ouis N.Y United States Rashkov-6.4 ski F6 3d 9th Cir United States Rivera-V-9.5 entura F6 3d 2d Cir Case Document Filed Page of iv United States Scharton-10.3 U.S United States Valle F6 3d 2d Cir ingarten United tes 3d 2d Cir pas sim U.S.C U.S.C U.S.C a U.S.C U.S.C U.S.C passim U.S.C U.S.C U.S.C New York al a4 Se-6 ction les F6 e4 Evid Other Authorities Child Abduction Prevention Act H.R Cong9.2 PROTECT Act Cong9.8 as rossed-10.2 in the Senate Feb Robert A Katz-6.4 mann dging Statutes at Case Document Filed Page of Senator Amber Leg9.7 islation Rec Case Document Filed Page of ELIM5.2 RY STATEM5.2 ENT Ghislaine well respectfull-12.1 submits this Memorandum in Support of her Motion to Dismiss Counts One Throug9.6 our of the Supe-6.4 ding9.5 ndictment as Time-6.5 red Motion The rnment scovered zeal to attempt to prosecute8.7 Ms has forced it to reach ack than ars and ges that have en time-barr-7.7 ed Counts One throu-10.3 char-7.3 Ms well with6 offenses alleg9.7 committed between and ut the applicabl-12.4 statute of limitations U.S.C pired five ars after the alleged condu-10.8 ct an attempt to get nd its statute of limitatio9.7 ns problem the ent has invoked U.S.C as that statute was amend-10.5 ed in ars after alle-6.8 conduct occurr-7.8 ed the ment relianc-6.8 on that ovision is improper for two separ-7.8 ate and independent asons er of which itself ndates dismissal of Counts One throug9.6 First the char-8 g9 e3 r2 tim-13 e-bar-8 red en unde-7 unless the Court retro-11 activel-23 applies the amend-10.5 ment to the statute cover Ms well conduc-6.5 from the rather than version that was in at the time of the alleg9.2 offenses Cong9.6 ress surpassin-10.4 ar that it did not intend the amendmen-10.4 to retroactivel-13.1 To trar-18 the ence7.1 mittee considered and ected an press retroactivit-12.3 provision in the House version of bill and one of the bill orig9.7 inal Senat-12.3 co sponsors acknowled-10.5 ged on the Senate floor that he omission was intentional Moreove-6.5 such retroactive application ould have a ptivel-12.7 impermissible roactive ct Second en if the amendment could be lied retroa-6.7 ctivel-12.7 does not to the ses alle-6.6 in the indictment at all Section an ception to the ral ear statute of limita5.4 tions and it appl7.6 ies to an ffens-11.4 volving9.6 the ual or ical abuse or kidnap-10.9 ping9.1 of a child The reme ourt has e3 peat-13 edly19 mad-11 cle-7 ar that the Case Document Filed Page of phrase ffens-12.2 involving8.8 rticula-7.2 conduct to an ense ements necessa-7.2 entail that conduct use none7.5 of the ffens-11.7 es with which Ms well has been ged necessa-6.6 entails or uires the ual or al abuse or kidnappin-10.7 a child does not SUMMARY TIONS Counts One throug9.7 of the indictment alle-6.2 that Ms well violat7.8 ed and conspired to violate two separat-12.6 provisions of the Mann Act U.S.C These counts are sed on uct that occur-7.8 red at ecified times betw-8.8 een and Count One of the indictment alle-6.1 that Ms well violated U.S.C now a conspirin-10.4 to entice 215one more dividuals to travel in intersta8 te and forei-12.4 commerce to in ual activit-12.7 for which a person can be char-7.7 ged with a criminal offense.-10.7 ndictment Count Two Ms well with a bstantive a violation claiming9.5 she 215persuaded ced entic-6.1 ed and erced an indiv-10.5 idual identified as Minor Victim-1 to travel from F6 orida to York 215with the intention that Minor Victim-1 would enga-6.5 in one more acts with ffrey19.5 Epstein in violation of New York al Section Id Count Three alle-6.3 at Ms ell conspired to transport individua-6.3 in interstate and forei-13.2 commerc-7.2 to enga-7.2 in ual activity18.8 which a rson be char-8.2 ged with a criminal offens-11.3 in violation of U.S.C a ndictment Count our char-7.3 Ms well with a subs8.5 tantive a violatio)-10.5 claiming9.5 she ed for Minor Victim-1 to be transported om orida to New rk New York on multiple occasio-10.6 ns with the intention Prior10.7 to Febru9 th9 prov9.1 ion9 at iss6.5 u9 cons6.4 ed en9 it beca13.2 a res6.5 u9 lt addition8.7 al ectio-15.3 date icatio-15.4 Feb itle Stat h9 u9 th9 prov9 n9 referred to h9 rein9 a Case Document Filed Page of that Minor Victim-1 would enga-6.4 in one or re acts with ffre-6.4 ein in violation of New York al ction Id ARGU9.2 cept as otherwise pressl-12.8 ovided a non-capital criminal offense must be char-7.6 215within five after such offense shall have been committed U.S.C a see U.S.C same-6.6 Because Counts throu-10.6 Four Ms well with offenses that were completed no er than and ecaus-11.9 the indictment was not returned until these counts time-barr-7.5 ed unless 215otherwise pressl-12.5 provided by30 l8 Id two indep-10.7 endent ons on which the rnment lies see Government Memorandum in Support of Detention Gov Dkt No filed ul at does not save Counts One throug9.6 our First under the rsion of that was in ect at the time of the alle-6.9 fenses the limitations period pired when the user ed the of which indisputabl-12.5 occurr-7.5 ed ars go here U.S.C hile Cong9.6 ress amended the atute in to tend limitations period to 215during9.6 the of the child see Prose-6.2 cutorial Remedies and Tools nst the plo9.8 itation of hildren Act of PROTECT Act he Amendment-12.4 ril Stat that amendmen-10.6 cannot to conduct-12.6 that occurr-7.6 ed durin-10.6 the Second by40 its plain terms applies to offens-11.5 es volving9.5 the ual or ical abuse or kidnaping9.5 of a child U.S.C ut the ual or ical or kidnaping9.6 a child is not an element of-8 f2 the off-8 enses-5.3 char-8 g9 e3 e3 re Acco-11 rdin-11 g9 g9 ardl-13 ess of which version is consider-7.4 ed does not I The Amendment Does Not Apply ctively.-10.7 At the time of the alleg9.8 offenses ovided as follows Case Document Filed Page of No statute of limitations at would otherwise prec-6.5 lude prosecution for an ffense involving9.1 the ual or ical abuse of a child nder the of ars all preclude ch prose-7.1 cution before child ache-7.1 the age of U.S.C Thus if an individual committed an offen se olving9.7 the ual or ical abuse of a ar-old person on une and the victim reached on then the statute of imitations as to that offense would have pired on when the victim reach-10.6 ed 204such that an indictme-6.6 nt in would be time-barr-7.6 ed Ther-7.6 is no dispute that all three of he cusers here ed long9.7 and thus the statute of limitations in effect at the time of the7.9 ffenses pired wever Congr-7.6 ess amended the statute and tended the time in which a prosecution could be ht to within the life of the victim See endment at U.S.C as amended in provided as ollows No statute of limitations at would otherwise prec-6.5 lude prosecution for an ffense involving9.2 the ual or ical abuse or kidnapi-12.8 of a child under ars shall eclude ch prosecution durin-10.7 life of the child U.S.C hile the overnment would the endment retroa-6.5 ctivel-12.5 to offenses Ms Max-10 well is alleg10 to a4 ve commi-12 tted ars rlier nothin-10 in the tex-10 sug10 e4 sts that the statute plied retroactivel-12.3 To the contrar-17.8 Supr-7.8 eme Court has eatedl-22.8 stressed a stron-10.8 mption against retroactive leg9.5 islation that is rooted in jurisprudenc-6.5 Landgr-11.2 af USI Film Prod U.S emphasis added-10.7 he principle that the gal effe-6.7 ct of condu-10.7 ct should ordinaril-12.6 be asse-6.6 ssed under the that ted when the conduct ook place has timeless and universal peal Id internal quotation omitted 215Retroactivit)-12.1 is not favored in statu7.8 te as ded to its rren7.8 sion ich7.9 rther es itatio-16.3 period to victi-8.3 or ears6.3 ter n9 all ree alleg8.3 ed iden8.3 ed Cou8.3 roug8.3 Fou8.3 are aliv8.3 does aff10 ect h9 e1 re Moreov9.1 er th9 g9 v9 e1 rnmen9 relies6.5 on9 n9 ent Gov9 at Case Document Filed Page of the law Bowen getown Univ Hosp U.S his presumption against retroactivit-12.1 carri-12.1 es partic9.2 ular force with respect to statutes of limitations in the criminal contex-10.5 riminal imi7.5 tations statutes are be liberall-12.5 interpreted in favor of repos-11.5 Toussie United States U.S quoting9.9 United States Scharton U.S This inciple transc-6.7 ends rticular statute rticular endant 215The purpose of a statute of limitations is to limit posure to criminal prosecution to a rtain ed period of time following9.6 the ccur-7.4 rence of ose acts the leg9.6 islatur-12 has decided to punish criminal sanctions Toussie U.S at 215Such a limitation is desig10.1 ned to protect individuals from having9.2 defend themselv-10.8 es nst char-7.8 en the facts ve become obscu-10.7 red the passag9.3 of time and to nimize the dang9.4 er cial punishment because ts in the distant past Id at Landgraf the uprem-13 Court articulated a two--8 step framewo-11 rk to evalu-11 te the proposed retro-11.2 active application of a statute to a rticular The court9.6 first task is to determine whethe-6.4 Cong9.6 ss has pressl-22.4 cribed the statute proper Congress has so of course ere is no eed to resort to judicial ault rules h3 en however statute contains no press command the urt must determine her the new atute have retroa-7.7 ctive fect i.e ether it would impair ts a possessed en he acted incr-7.8 a abilit-12.8 for past condu-10.8 ct or impose new duties with respect to trans-12.1 actions alr-8 completed the atute would operat-13.1 retroa-6.4 ctivel-12.4 traditional presumption teach-10.4 es that it does not rn sent clear con-11 g9 ressional intent-13 favorin-11 g9 such a result.-11 Landgraf U.S at Thus if Cong9.5 ss has pressl-12.5 escrib-10.5 ed at a statute will or will not retro-10.2 activel-12.2 the inquir-17.2 ends if the court proceeds to the second step to determine wheth-11.1 er the plication of the statute ould have impermissible active ct Id As shown below retro-10.7 ive application of the Amendment fails both steps of the Landgraf is rding9.7 step not Cong9.7 ress il to include an press Case Document Filed Page of retroa-6.5 ctivit-12.5 provision in the Amendment it actuall-22.5 consider-7.5 ed and jected such a provision sig9.6 naling9.6 its ear intent that the ment not be retroactive Accordin-10.7 the Landgraf is should end at step one with a termination that the Amendment is not retroactive and that Coun-11 ts One throug9.1 our are erefo-10.9 re time-b-9.4 arred wever even if the is advanc-6.5 es to two application of the Amendment to Ms well alleg9.5 ed conduct would eate permissible retroa-6.7 ctive fects in violation of Landgraf panding8.7 a criminal statute of limitations A gress ressly rescrib-5.3 roac-7.3 tivity reje-7.3 cted-5.3 a proposal to do The first step of Landgra-8.9 asks whether ess pressl-13.3 escrib-11.3 ed temporal reach f2 the Amend-11 ment Here Con-11 g9 ess ressl-13 r2 esc-7 ribed that the Amendment was to prosp-10.4 ectivel-22.4 does the of Amendment omit ntion of troa5.2 tivit-10.8 but the5.2 isla5.3 history21.2 it solute5.2 tha5.2 Cong9.2 ress considered rejected a retro-10.5 activit-12.5 ovision use such nambig9.5 uous congressional intent is sufficient to constitute an press prescription er the first step of Landgraf that the amendment not be retroa-6.8 ctive there is no ed to proce-6.8 to the second Landgraf step.9.7 here the essional intent is clear it rns Landgraf U.S at quoting10.1 Kaiser Aluminu-10.2 Chem Corp orno U.S re the leg9.6 islative histor-17.4 es no doubt as to congressi-6.4 nal intent The House version of the bill which would have eliminated the statute of limita5 tions entirel-12.5 cluded an press retroactivit-22.5 provision Child Abducti7.6 on Prevention Act H.R Cong9.8 amendments made section shall to prosecution of offense committed before on er the te of the ctment of this section The ate version contained no Case Document Filed Page of retroa-6.2 ctivit-12.2 provision PROTECT Act Cong9.8 as ossed the Senate Feb en the use and Senate confe-7.1 renc-7.1 ed to resolve diff-8.1 ces between the bills the retroactivit-12.3 provision omitted As Senator one of bill orig9.7 inal sponsors and a former chair the ate udiciar-7.6 Committee,-10.6 stated on the Sena6.2 te the omission was intentional am please-6.7 that the confe-6.7 renc-6.7 eed to drop ge the orig9.3 inal passed bill that would have tended the limitatio9.2 ns period retro-10.7 activel-22.7 Senator Amber slation Cong Rec Such a clea-6.8 pression of ressional intent ould end the Landgraf is at the first step ndgraf the upreme Court has made ear that pressl-13.2 prescribed-10.2 is is ot limited to the of the statute but look leg9.8 islative histor-17.3 See Martin Hadix U.S amining9.6 uctur-7.4 leg9.6 islative histor-17.4 as part of first Landgraf step see also Lattab Ashcroft 3d 1st Cir 215our inquir-7.1 is not limited to he statutor-7.1 but include an amination of standard ns of statutor-7.4 constru-10.4 ction such as the statute cture and slative histor-17.4 ed Landgraf itself included a slative histor-7.3 is U.S at Landgraf-11.5 however Court concluded that the tive histor-7.6 at issue clearl-22.7 eviden-10.7 ce gress intent gardin-10.7 retroactivit-12.2 Id at is not the case As udg9.5 Katz-6.5 mann of Second Circuit has ed unambi-12.5 uous gislative histor-7.2 should not be disr-7.2 egarded:-12.2 hen courts construe tutes in that ct what slators consider-7.4 their work product the judicia-6.6 not is more likel-22.6 to reach the corr-7.6 ect sult but also promotes comit-12.6 the first branch rnment is a artisan-10.6 institutional perspective within Cong9.5 ress that rts should consider reliab-10.3 le leg9.9 islative histor-17.1 and at failing17.5 to do so impu-10 gns Cong10 ress workw-8.1 Robert A Katz-6.4 mann dging Statutes at Consideration and jection ess of a slative proposal is of the est pressions of congressional intent and courts Case Document Filed Page of pic5.3 ive5.3 it ht in inte5.3 rpre5.3 ting11.3 deral sta5.4 tute5.3 See e.g Drug Admin Brown illiamson Tobacco Corp U.S notin-9.8 ss considered and rejec6.2 ted federal bills that would have ed the7.9 FDA sdiction to reg9.5 tobacco produ-11 cts Burea-10.2 of Alcohol Tobacco Firearms Fed Labor Relations Auth U.S noting9.2 that ress pressl-12.8 consider-7.8 ed and timatel-12.8 ected-10.8 proposed interpr-7.4 etation of Civil Service Reform Hudson Valley Blac-6.5 Press I.R.S 3d 2d Cir noting9.6 that slativ-10.4 histor-7.4 includin-10.4 rence report establishes that Cong8.9 ress pressl-13.1 consi-13 dered ader remedi-13.1 es against lia5.2 udits ore the5.2 United States Napolitano 2d 2d Cir slative stor-7.7 of the Act clearl-22.7 indicates hat Cong9.3 ss considered and reje-6.5 cted fendant-5.7 suggestion that dismissal sanction be pplied to certain subsequent es ted States Lawson 2d 2d Cir eriz-6.6 ing9.4 confer-7.8 ence committee jection of Senate al to permit use of plea ainin-10.7 statements for impeachm-12.4 ent purpose-6.4 under Fed Evid as 215demonstratin-10.5 gress plicit intention to preclude of such statements cannot asonabl-22.5 be puted that Cong9.5 ss intended that the endment would not roactivel-22.6 Nothing10.5 in ingarten United States 3d 2d Cir the Second Circuit case that the retroa-6.5 ctivit-12.5 of the Amendment is inconsistent with this is ingarten the court is in the contex-10.9 of an ineffe-6.9 ctive assistance counsel claim Thus ingarten offers little more than a distraction from the sis required here The court was not required to and did not ecide the rits of the issue noting9.5 that he underl-12.9 rits question remains for another anoth-10.8 er se Id at Moreover defendant in ingarten did not raise and the rt did not consider the ment that ress Case Document Filed Page of had pressl-12.7 escrib-10.7 ed that the Amendmen-10.7 would not be retroa-6.9 ctive ingarten considered onl-23 ether there was an press pres-12 cription that the Amendment would be retroa-7.1 ctive concludin-11.1 hat the defend-11.1 ant couns-12.1 el could have olorable ments that there was no ch ption Id at Cong9.6 ressional intent here could not rer House bill would have made the Amendment retro-10.6 active the Senate bill did not and the conferen-10.6 ce nsciousl-12.6 jected the retroa-6.6 ctivit-12.6 provision It is unnecessar-17.6 to ed to the second Landgra-8.9 step and Counts One throu-11.4 time-bar-8.4 Step Tw-8 App6 lication of-7 the Amendm13 ent-7 to Ms Maxw-8 ell alleged offe6.6 nse6.6 wou8.6 ld have6.6 issible6.6 ffe6.6 the Court re to proc-6.8 eed to the second Landgr-10.2 af step 204whether applic-6.6 tion of the Amendment here ould have an impermissible retroa-6.7 ctive fect at step also counsels against retroactivit-12.1 is of the activit-12.7 of a criminal ute of limitations under the second step of Landgraf must be undertaken in conjun-10.3 ction with the principle that unlike civil statutes of limitation 215criminal limi7.4 tations statutes are be liberall-12.4 inter-7.3 preted in vor of repos-11.3 Toussie U.S at quoting9.7 Scharton at As one court ed in declining9.9 to tend a criminal statute of limitatio10 ns to pre-enac8.8 tment uct if Landgraf and Toussie 215are ead in unction courts 215must inte6.7 rpret the statute limit7.4 ations in a manner favorin-11.5 repos-12.5 for ndant United States Gentile Supp 3d Nor clear ide-11 ce cong8.8 res6.2 al inten8.8 ed or con8.8 idered United States6.2 Pier6.3 ouis6.3 D.N.Y ich8.8 e1 rnm9.7 e1 pport its6.3 con8.8 tion8.8 at be applied retroactiv8.6 Gov8.6 at Case Document Filed Page of the civil contex-10.6 the econd Circuit has wledged a distinction ween retroactivel-12.6 tended limitations peri7.4 od to revive a sta5.6 le claim which has been held impermissible under Landgraf and retroactivel-12.2 tending9.7 the6.6 limitations period for a live claim which has held missible See e.g garten 3d at 2d Cir collectin-10.6 and civil cases crimi-12.6 nal contex-10.6 however is undamentall-12.6 different At a minimum Toussie potentiall-12.3 alters the7.2 nd step in the Landgraf approach in criminal cases United ates Miller 3d 1st Cir valuating9.8 Amendment in adjudicating9.3 inef-7.7 ctive assistance7.9 of counsel claim her words en Cong9.2 ress sounded uncertain trumpet a rt oug9.3 ht to frain om an ed criminal statute of limita8.2 tions retrospectivel-22.1 Id As shown in the first step of Landgraf the trumpet sounded ess in enactin-10.4 the Amendment was but unce-6.4 rtain congressional intent is the criminal contex-8.9 the retro-10.4 active application of an tended statute of limitations to revive a ed is not merel-12.6 an imper-7.6 missible effect under Landgraf it violates the Ex Post Facto Clause ogner California U.S As Landgraf itself ed howev-10.7 er principle ainst roact-12.7 is not simpl-12.7 an lication of the Ex Post Facto Clause rather-7.9 it is a rooted-11.8 r2 esumption based on lementar-17.9 considerations of funda-7.1 mental ess Land-9.3 graf U.S at See also Thom Ashcroft 3d 2d Cir Calabresi writing10.1 for the majorit-11.8 but noting10.1 he was speaking10.2 for elf statin-5.4 that anti-retroactivit-11.8 presumption in Landgraf is 215trig9 gered For th9 reas6.5 on9 h9 g9 v9 e1 rnm9.9 u9 l4 be barred pros6.4 ecu9.1 n9 g9 Maxw14.1 any9 ens6.5 ag9 th9 ird accu8.6 iden8.5 ied as6 Victi-8.7 applied becau8.5 s6 third accu7.8 ser reach7.7 ed and thu7.8 the statute itatio-16.4 as to ad pired Case Document Filed Page of statutes retro-10.4 active applicati-5.8 on while not the equivalent of criminal ex post facto nevertheless would run afoul of 217familiar consider-7.9 ations of fair notice onable relian-10.9 ce and settled pectations Thus in the criminal the second step of Landgraf should be read as providing9.6 otections broader an simpl-12.4 violations of the Ex Post to Clause and as prohibiting9.5 retro-10.5 active plication of a criminal statute of limitations 204and he resulting9.6 pansion of an individual posure to criminal liabilit-12.8 completed nduct 204even ere the char-7.5 ge is not time-bar-7.5 red at the time of the amendment Statutes of limitations 215applicable to criminal secutions are principall-11.6 to protect individuals from having9.4 to fend themsel-12.6 ves ainst es orted cts that are remote in time United States Rivera-V-9.5 entura 3d 2d That concern is ened re re the rnment-13.2 seeks to on the active tension of a criminal statute of limitations to prosecute a se sed on condu-10.5 ct more two decad-10.5 es old with little if eviden-10.3 ce other than witness testimon-10.4 See Toussie U.S at obse5 rvin-9 tha5 sta5 tute5 of limita5 tions ay31 a5 so have5 the5 sa5 luta5 e5 f4 fe5 c5 of enc5 ourag11 in-9 la5 enforcement cials to investi-12.3 te susp-6 ected criminal activit-12.3 Since the time of the alleged condu-10.8 ct memories have come ded or corrupte7 cuments ve been lost or destro-10.8 and witness-11.8 es have died all to the me prejudice Ms well Retroactivel-22.6 the dment here not ld in the ace essional intent it would violate all notions of fundamental irness See gh ing nt nt ngar9 th8 cou8 rt at h8 def9.7 n8 dan8 u8 el h8 ad fu8 pers-6.6 aded th8 trial cou8 rt h8 at th8 end-18 ent uld-6 retro-6.1 activel-11.2 x6 the tute itatio-18 n6 liv6 ch6 g6 h6 trial co-6 u6 h6 ld-6 n6 g6 in th inio-9.6 Uni4.8 Sur7.3 r8 ed et reach8.3 ed of10 me-8 us he-8 ha-8 ve-8 he-8 ve-8 he-8 e3 Sur8.2 e3 perf12.4 a andgr9.5 Case Document Filed Page of II Section Does Not Apply at Even if the Amend-10.6 ment could be retro-7.4 active-6.6 applied to Ms ll alleged conduct durin-10.6 the Counts One throug9.4 ur would still be time-bar-7.6 red for a separate and independent ason tion does not to the offenses with whic-6.3 Ms well is char-6.9 Section tends the statute of limit8.1 ations for ense-7.8 involving9.2 the ual or al abuse kidnaping9.5 a child unde-6.5 the of S.C but none of the offens-12.2 es Counts One throug8.8 ur is such an ense A Section applies onl7.7 to enses that necessarily tail the sexual or physic5.3 al use5.3 kidn7.3 apping a A long8.9 line of cases esta-7.1 blishes that an ense or 215crime-7 that 215involves-12.1 ain conduct means an ffens-12 that ssaril-22.9 quir-7.9 that conduct Shular United States Ct internal quotations omitted Those es date ck at least to Bridges United States U.S which constru)-10.2 ed the Wartime Suspension of imitations Act tension of statutes of limitations for offe5 nse5 inv5 olv5 ing fraud or attempted fr-8 aud against the United States.-10.4 U.S.C emphasis ed The Supreme Court held that that tension was 215limited strictl-12 to offens-10.1 in which defrauding10 r3 atte5.4 mpting10 to defraud the United States is an sential ing9.2 edient of the ffense char-7.8 ged Bridges U.S at Thus the Court held that char-7.6 at the endan-10.6 knowing9.4 made and nspired to make false statements in a turali-6.2 tion proceedin-10.8 that he aided and abette-6.7 a fraudul-12.8 ent certificate of natur-7.3 alization were subject to the neral statute of limitations and not the ception because is not an essential ing9 dient of such of-8 fenses nd he offense is complete without proof fraud althoug9.3 fraud ten accomp-10.7 anies it Id at rds6.8 re added9.3 part of11 at Case Document Filed Page of nce Bridges the Court has repe-6.6 atedl-22.6 emphasiz-6.6 that statutor-7.6 renc-6.6 to an 215offens-12 involving9 r2 ffenses-5.8 involvin-11 e3 rtai-13 elements call for ch approach ee Shular S.Ct at Kawashima Holder U.S interpretin-10.7 ffens-11.7 es that involve fraud or it to mean fenses with elements that necess-11.7 entail audulent or deceitful condu-10.2 ct inter-7.2 nal punctua6.8 tion omitted Leocal Ashcroft U.S stating9.4 that ffens-11.6 involves lang9.4 equires us to look to the elements and the nature of the ffens-11.8 ather than to the particular facts at issue see United States Davis Ct all but the most unusual situations8.8 a sing9.8 le of a statutor-7.8 ase must ve a ed meanin-10.8 hus if the fense ecessa-6.8 entails the identified conduct it be said to be an ffens-11.6 involving9.4 that condu-10.6 ct Kawashima U.S at United States an the D.C Circuit used this approach in interpr-7.3 ing9.7 U.S.C a a nue statut-12.8 that applies to fense involving9.2 use the mails transportation in interstate7.3 or foreig9.8 commerce the importation of an bject or person into the United States The court concluded at the most natural ading of the statute is construe offe-7.2 nse olving8.8 renc-7.2 to the of the ense at issue 3d D.C Cir emphasis in inal The court then gave an lustrative ample of a case in ch a defend-10.5 ant travels in interstate commerce commits a eral offense and then returns home via inte5.3 rstat-12.6 commerce:-12.7 circumstances surr-8 ounding9 the r2 ime includ-11 he defendant trav-11 el in interstate commer-7.5 ce but his crime is not an se involving9.5 ansportati-12.5 on in interstate commerce other words a faithful reading9.5 of precise of the statute in the order in they19.9 are written ggests tha6.7 an 215offense lves transportation in interstate comme7.3 rce when uch tra6.9 nsportation is an element of the offens-12.8 Case Document Filed Page of Id Similarl-12.8 an ffens-11.8 involving9.2 the ual or ical abuse or kidnap-10.8 ing9.2 of a child under the of is offense in ch such al abuse ical abuse or kidnappin-10.9 is an element of the The Eig9.6 hth Circuit cluded as much in United States Coutentos 3d 8th Cir There the urt held that did not to a char-7.6 ge of ssession of child pornograph-20.7 Id at The court ked to the elements of stat-5.4 ute as the acts of did involve the ual abuse of a child including9.5 the produ-10.5 ction and possession of child pornograph-20.6 Id at Yet the rt held that on the same set of facts the ffens-11.9 of possession of child pornog9.6 did not involve ual abuse and thus was subject to the gener-7.4 al statute of limitations the offense productio-9.9 of child porno-10.6 involve ual abuse and subject to 215That a produ-7.8 cer of child porno-10.4 ill possess it at the time of the abuse is insufficient to view that the offens-11.3 of sessing9.7 child pornograph-20.5 itself does ot involve an act gainst a child i.e the ual use of a child Id at-6 Coutentos demonstrates that the ense involvi-6.2 with other statutes requires the cour-7.8 to look to the elements of the offens-12.5 er the facts of a particular case to ine whether a particula-7.4 ffense 215involves the ual or cal abuse or kidnapping9.5 a child Id at This approach makes practical sense the applicabilit-12 of depended on the acts of a rticular case ther than the elements the offens-12.1 the rnment would be requir-7.8 ed conduct ond ments of the offense i.e at ual or al abuse kidnapping9.4 ccur-7.6 red er to prove that its not time5.2 Case Document Filed Page of ch a cessaril-23.3 ails or ents of the fense approa-7.3 ch is partic-7.3 ularl-13.3 appropriate for three tional reasons here like8.8 the Wartime Suspension Act in Bridges creat-12.5 es an tion to the ral ear limitations period and such ceptions should be rrowl-23.1 construed.-11.1 Brid-9.9 ges U.S at iting10.1 United States McElvain U.S see also mm Clark U.S we usuall-13 ead the ception narrowl-23 in ord-11 er to eserve primar-18 erat-13 ion of the provision particularl-22.5 en the ption is 215somewhat uous cond itself requires that ception to the be expressly ovided emphasis added wher-8.1 does pressl-13.1 purport-13.1 to cover enses that uld but need not be proved cts involving9.3 ual or ical of a minor And third under the rule lenit-12.3 with respect to criminal statutes should be constr5.2 ued in vor of the endant Burrage United States U.S see also United States Valle F6 3d 2d Cir wher-7.7 as re the rnment and the both posit plausible interpretations of a criminal statute the rule of requir-7.6 es us to adopt the defend-10.6 ant construction To do herwise would violat-6.5 tanding9.4 essional repose that is ament-12.7 al to our soc6.3 and our criminal law Bridg-11.4 es U.S at see also Toussie U.S at 215criminal mitations statutes are to be liberall-22.4 interpr-7.3 eted in favor of pose inter-7.4 nal quotation omitted The offenses charge6.5 Counts One through ur do not necessarily entail the5.6 xual physic5.6 al abuse5.6 kidna11.6 ppi9.6 ng of Under the essaril-23.2 tails approa-7.2 ch does not of the char-8.2 ged counts essaril-22.8 enta-6.8 ils 215the ual or abuse or kidnapin-10.7 of a child Se-8 uit ngar9 becau8.2 aros5.7 con8.2 tex8.2 eff9.9 ecti-8.9 i3 t3 ce el clai-9.1 the cou9.1 rt con9.2 clu9.1 ded at it obv9.1 ious6.5 at requ9.1 ired ents bas7.2 ed appr11.5 oach9.8 ngar9.5 Case Document Filed Page of U.S.C Counts One and Two arise U.S.C a ich at the time of the alleged condu-10.7 ct provided that a person could char-7.7 with a criminal fense if she 215knowing9.2 rsuad-10.8 es induces entices es any individual to travel in interstate or forei-12.3 commerce in rritor-17.3 Possession of the United States to enga-6.3 in prostitution or in ual activit-12.3 which person can with a criminal offense.-10.4 U.S.C a asis added That statute criminalizes enticing)9.6 ndividua5.2 not ssa5.2 ildre5.2 to oss sta5.2 line5.2 to ngag11.2 in tivitie5.2 other words the act that violat-9.2 es a does necessaril-22.8 ail the ticement of a child to travel ause the nticement of an individual any age satisfies the tute Further a es necessaril-22.9 ail ual or c3 al abuse kidnaping9.1 U.S.C A substantive a is complete when an individual is induce-8.2 entice-8.2 or coerc-7.2 to travel to ge in unlawful ual activit-13.2 a5 nd a5 c5 onspira5 to c5 o1 mit suc5 a5 n1 offe5 nse5 is c5 mple5 te5 whe5 a5 n1 ag11 ree5 ment to p1 e5 r4 sua5 de5 induce-7.9 entice-7.9 or coerce-7.9 an individual to engage in such el is ed and a le overt act is committed in furtheran-10.3 ce the reement is immate7.1 rial to either offense ether awful ual subsequentl-22.8 Moreover intended unlawful ual activit-12.7 quired to establ-12.7 ish a a fense eed not involve ual or al abuse kidnaping9.7 a is frequentl-22.3 if not imaril-12.3 invoked in ecution-10.3 involving9.7 the enticement of adults to avel to ge in prostitution including9.9 on a ntar-7.1 sis See e.g United States Rashkov-6.4 ski 3d 9th Cir or all of these asons Counts One and Two do not char-7.7 ffens-11.7 es involving9.3 the ual or al abuse or kidnapping9.5 of a child thus are not subject to Case Document Filed Page of Nor does tend the statutes of limitations under Counts hree and our Those counts arise er U.S.C a ch prohibits 215transportin-10.5 minors across state lines with inte5.2 nt that minor12.5 eng9.5 ge in ual activit-12.5 for whic-6.5 rson be char-7.7 with a criminal ffense emph-9 asis added Neither that fense a conspira-6.9 to 215transport a minor with such intent necessa-6.6 tails 215the ual or ical abuse or kidnaping9.2 of a child U.S.C nstead-14.6 as with a the ffense is a 215crime intent and a conviction is entirel-12.7 sustain-10.7 able if no underl-28.7 criminal ual act ever occurs United States Broxmey-7 er 3d 2d Cir or this ason Counts Three and our are not subject to tended statute of limit7.6 ations does not matte-6.2 that the particula-6.2 cts alle-6.2 in the indictment fall within 215The embellishment of he indictment does not leng9.6 then the time prosecution Bridges U.S at Nor does it matter that ual abuse of a minor en ac-7 compan-18 the offenses char-8.6 ged See id nder the statute-7.9 eatin-10.9 the ense-7.9 ical ual abuse of a minor kidnapping9.5 is not essenti-12.5 al ing9.5 edient Id tension for fense-8 involving9 the sex-11 ual or ical use or kidnapin-11 g9 of a ild under the g9 f2 ars es not a2 en10 e2 ect4.9 e2 ber a ect4.9 ion10 a2 e2 cosm10.9 c2 ts terial here at is sec-13 a Violen)6.8 rol e3 XVI Case Document Filed Page of CONCLUSION or the reg9.8 reason-10.2 Ms well spectfu-10.2 ests that the Court dismiss the indictment against Dated New York New spe5.1 submitte5.1 Mark Cohen Mark Cohen Christian Everdell COHEN GRESSER Third Avenue-6.5 New York NY Phone Pag9.7 liuc-6.3 a A HADDON MORG-8.3 AN FOREMAN P.C East 10th Avenue-6.3 Denver Color-7.6 ado Phone obbi Sternheim fices of obbi Sternheim st 19th Street 4th New rk Phone Attorneys for Ghislaine Maxwell Case Document Filed Page of CERTIF11.7 ICATE SERVICE certif-17.7 at on Januar-17.7 rved-5.1 ail pursuant Rule the Court individual practices in criminal es the within memorandum and accompan-20.6 hibits upon the following9.9 Maurene Alison Moe ra Pomer-7.6 antz-6.6 Andrew Rohrb-11.6 U.S Attorne-6.8 ce One int Andrew-9.7 a New York NY Maurene.-10.8 Alison.moe usdoj.g10.2 ra.Pomer-7.3 antz-6.3 usdoj.gov Andrew.Rohrb-10.8 ach Christ8.3 ian Everdell Case Document Filed Page of
