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Mega Edition: The DOJ Lights Ghislaine Maxwell Up In Their Response To Her Appeal Request (Part 4-6) (9/6/26) · The Vault: The Epstein Files

• 0:00
  Speaker 1: What's up everyone and welcome back to the Epstein Chronicles.
• 0:04
  Speaker 1: In this episode, we're going to pick up where we
• 0:05
  Speaker 1: left off with the United States brief in response to
• 0:09
  Speaker 1: Ghislaine Maxwell and her attempt at an appeal. Number three,
• 0:14
  Speaker 1: the district court did not abuse its discretion in declining
• 0:17
  Speaker 1: to conduct a hearing. Finally, Maxwell argues that the district
• 0:21
  Speaker 1: court erred by denying her motions to dismiss without an
• 0:25
  Speaker 1: evidentiary hearing. But as Judge Nathan explained, the cases cited
• 0:29
  Speaker 1: by Maxwell in support of her request for a hearing
• 0:32
  Speaker 1: mostly involved oral arguments where there was no written record
• 0:36
  Speaker 1: of the full set of terms reached by the parties,
• 0:39
  Speaker 1: and all of which involved defendants with first-hand knowledge of
• 0:42
  Speaker 1: the negotiations. This is no such case. The NPA's terms
• 0:47
  Speaker 1: are clear. Furthermore, Maxwell had an unusually large amount of
• 0:51
  Speaker 1: information about the NPA's negotiation history in the form of
• 0:55
  Speaker 1: the OPR report, yet identifies no evidence that the Department
• 0:59
  Speaker 1: of Justice made any promises not contained in the NPA. Here,
• 1:03
  Speaker 1: as below, Maxwell's further request for a hearing rests on
• 1:07
  Speaker 1: mere conjecture. Judge Nathan did not abuse her discretion. Point
• 1:12
  Speaker 1: number two. The district court correctly concluded that the charges
• 1:16
  Speaker 1: were timely. In 2003, Congress extended the Statue of Limitations
• 1:21
  Speaker 1: to for offenses involving the sexual or physical abuse of
• 1:24
  Speaker 1: a minor to allow prosecution so long as the victim
• 1:27
  Speaker 1: remains alive. U.S. Code 18, Section 3283. Attempting to undermine
• 1:33
  Speaker 1: the clear legislative intent, Maxwell argues that the amendment did
• 1:37
  Speaker 1: not apply to her case because her crimes both predated
• 1:40
  Speaker 1: the amendment and did not involve sexual abuse. These arguments
• 1:44
  Speaker 1: fly in the face of the statutory text, legislative history,
• 1:48
  Speaker 1: this court's own decisions, and the persuasive authority of other circuits.
• 1:53
  Speaker 1: The charges fell squarely within the amended statute of limitations,
• 1:57
  Speaker 1: and this court should affirm Judge Nathan's well-reasoned decisions, denying
• 2:01
  Speaker 1: Maxwell's motions to dismiss the charges as untimely. A. Applicable
• 2:07
  Speaker 1: Law 1. Standard of Review This court reviews, de novo,
• 2:12
  Speaker 1: both the denial of a motion to dismiss an indictment
• 2:16
  Speaker 1: and the application of a statute of limitations. United States v. Sampson,
• 2:20
  Speaker 1: 898 F. 3D, 270-276, 278 Second Circuit, 2018. 2. Statutes of
• 2:22
  Speaker 1: Limitations for Offenses Against Children, U.S. Code 18, Section 3283,
• 2:25
  Speaker 1: and Child Abduction and Sex Offenses, U.S. Code 18, Section 3299.
• 2:41
  Speaker 1: Most federal non-capital offenses carry a five-year statute of limitations.
• 2:45
  Speaker 1: See U.S. Code 18, Section 3282A. In 1990, Congress enacted
• 2:51
  Speaker 1: a provision titled Extension of Child Statute of Limitations, which
• 2:56
  Speaker 1: provided that no statute of limitation that would otherwise preclude
• 3:01
  Speaker 1: prosecution for an offense involving the sexual or physical abuse
• 3:04
  Speaker 1: of a child under the age of 18 shall preclude
• 3:08
  Speaker 1: such a prosecution before the child reaches the age of 25.
• 3:10
  Speaker 1: The Crime Control Act of 1990, Pub.L No. 101-647, Title II,
• 3:14
  Speaker 1: Section 225A, 104, STAT 4789, 4798, codified at U.S. Code 18,
• 3:16
  Speaker 1: Section 3509K, 1990. This provision extended the federal criminal limitation
• 3:21
  Speaker 1: period for child sex abuse offenses making it easier to
• 3:38
  Speaker 1: prosecute offenders who commit sex crimes that may be difficult
• 3:41
  Speaker 1: to detect quickly. Weingarten v. United States, 865 F. 3D 4854,
• 3:44
  Speaker 1: 2nd Circuit, 2017. In 1994, Congress recodified this provision, moving
• 3:46
  Speaker 1: it to U.S. Code 18, Section 3283, with identical language.
• 3:48
  Speaker 1: Violent Crime Control and Law Enforcement Act of 1994, Pub.L,
• 4:07
  Speaker 1: Number 103-322, Title 33, Section 33-0018A, Statute 108-1796-2149, codified at U.S.
• 4:10
  Speaker 1: Code 18, Section 3283-1994. Within a decade, Congress began to
• 4:13
  Speaker 1: view even the extended statute of limitations period as in
• 4:30
  Speaker 1: 1994 version of the 3283 as inadequate in many cases
• 4:36
  Speaker 1: because it released from criminal liability sex abusers whose crimes
• 4:40
  Speaker 1: were not brought to the attention of federal authorities until
• 4:43
  Speaker 1: after their victims turned 25. Weingarten, age 65, F. 3D at 54. Accordingly,
• 4:51
  Speaker 1: in 2003, Congress enacted a provision titled No Statute of
• 4:54
  Speaker 1: Limitations for Child Abduction and Sex Crimes. which amended Section
• 4:59
  Speaker 1: 3283 to read, No statute of limitations that would otherwise
• 5:04
  Speaker 1: preclude prosecution for an offense involving the sexual or physical
• 5:08
  Speaker 1: abuse or kidnapping of a child under the age of
• 5:11
  Speaker 1: 18 shall preclude such prosecution during the life of the child.
• 5:16
  Speaker 1: Prosecutorial Remedies and Tools Against the Exploitation of Children Today
• 5:20
  Speaker 1: Act of 2003, the PROTECT Act, Pub L, No. 10821,
• 5:22
  Speaker 1: Title II, Section 202, 117, Statute 650-660, codified at U.S.
• 5:33
  Speaker 1: Code 18, Section 3283-2003. In 2006, Congress enacted a provision
• 5:41
  Speaker 1: titled Longer Statute of Limitations for Human Trafficking-Related Offenses and
• 5:45
  Speaker 1: subtitled Modification of Statute Applicable to Offense Against Children, which
• 5:51
  Speaker 1: further amended Section 3283 to its current form to permit
• 5:55
  Speaker 1: the prosecution of such offenses in during the lifetime of
• 5:58
  Speaker 1: the victim, or 10 years after the offense, whichever is longer.
• 6:02
  Speaker 1: Violence Against Women and Department of Justice Reauthorization Act of 2006, Pub.L No. 109-162,
• 6:07
  Speaker 1: Title XI, Section 1182C, 119, Statute 2960-3126, Codified at U.S.
• 6:09
  Speaker 1: Code 18, Section 3283, 2006. Later in 2006, Congress enacted U.S.
• 6:28
  Speaker 1: Code 18 Section 3299 in a provision titled No Limitation
• 6:33
  Speaker 1: for Prosecution of Felony Sex Offenses, which provides that notwithstanding
• 6:38
  Speaker 1: any other law, an indictment may be found or any
• 6:41
  Speaker 1: information instituted at any time without limitation for any offense
• 6:46
  Speaker 1: under Section 1201 involving a minor victim and for any
• 6:50
  Speaker 1: felony under Chapter 109A and 10 except for Section 2257
• 6:55
  Speaker 1: and 2257A, or 117, or Section 1591. The Adam Walsh
• 6:57
  Speaker 1: Child Protection and Safety Act of 2006, Pub.L No. 109-248,
• 6:59
  Speaker 1: Title II, Section 211-1-120, Statute 587-616, Codified at U.S. Code 18,
• 7:02
  Speaker 1: Section 3299-2006. 3. retroactivity under Landgraf. In Landgraf v. USI
• 7:27
  Speaker 1: Film Products 511, U.S. 244, 1994, the Supreme Court set
• 7:33
  Speaker 1: forth a two-part framework for determining whether a statute may
• 7:37
  Speaker 1: be applied retroactively. At the first step, if Congress expressly
• 7:41
  Speaker 1: prescribed that a statute applies retroactively to the antecedent conduct,
• 7:46
  Speaker 1: the inquiry ends and the court enforces the statute as
• 7:49
  Speaker 1: it is written, save for constitutional concerns. Weingarten, H65, F. 3d
• 7:55
  Speaker 1: at 54 and 55. If, however, the statute is ambiguous
• 8:00
  Speaker 1: or contains no express command regarding retroactivity, then the court
• 8:04
  Speaker 1: must turn to the second step where a reviewing court
• 8:07
  Speaker 1: must determine whether applying the statute to the antecedent conduct
• 8:11
  Speaker 1: would create presumptively impermissible retroactive effects. Idea 55. If it would,
• 8:18
  Speaker 1: then the court shall not apply the statute retroactively absent
• 8:22
  Speaker 1: clear congressional intent to the contrary. If it would not,
• 8:25
  Speaker 1: then the court shall apply the statute to antecedent conduct. B.
• 8:29
  Speaker 1: The Discussion 1. There was no impermissible retroactivity in applying
• 8:34
  Speaker 1: Section 3283 to Maxwell. Maxwell's claims at the district court
• 8:39
  Speaker 1: erred by applying Section 3283's 2003 amendment to her six
• 8:41
  Speaker 1: counts of conviction, i.e. counts 3, 4, and 6 because
• 8:49
  Speaker 1: they involve conduct that predated the amendment. As an initial matter,
• 8:53
  Speaker 1: this argument ignores the fact that counts 3 and 6
• 8:56
  Speaker 1: both charge continuing offenses that continued into 2004, thus postdating
• 9:02
  Speaker 1: Section 3283's amendment. Moreover, under the Landgraf framework, in the
• 9:08
  Speaker 1: 2003 amendment properly applies to pre-enactment criminal conduct that still
• 9:13
  Speaker 1: could have been timely prosecuted at the time of the enactment,
• 9:17
  Speaker 1: as was the case here. A. There was no retroactivity
• 9:21
  Speaker 1: as to counts 3 and 6. As an initial matter,
• 9:25
  Speaker 1: counts 3 and 6 both charge conduct that continued through 2004, i.e.
• 9:30
  Speaker 1: after the 2003 amendment to Section 3283, and thus present
• 9:36
  Speaker 1: no retroactivity concerns. For conspiracy charges requiring proof of an
• 9:41
  Speaker 1: overt act, including U.S. Code 18, Section 371, The conspiracy
• 9:46
  Speaker 1: statute at issue here, the statute of limitations, runs from
• 9:50
  Speaker 1: the date of the last overt act in furtherance of
• 9:53
  Speaker 1: the conspiracy, United States v. Monaco, 194, F. 3D, 381, 387, N. 89-97,
• 10:00
  Speaker 1: Second Circuit 2001. Similarly, for a continuing substantive offense, the
• 10:04
  Speaker 1: statute of limitations only begins to run out when the
• 10:06
  Speaker 1: crime is complete. meaning when the conduct has run its course,
• 10:22
  Speaker 1: United States v. Apolito, 543, F. 3d, 2546, 2nd Circuit, 2008.
• 10:31
  Speaker 1: Here the indictment alleged the conspiracy charged in counts 3
• 10:35
  Speaker 1: and the sex trafficking offense charged in counts 6 continued
• 10:39
  Speaker 1: through 2004, a. 127-132, see also a. 123-124, 131-132, describing
• 10:48
  Speaker 1: conduct through 2004 involving Victim 4. Thus, the statute of
• 10:53
  Speaker 1: limitations for these two counts did not begin to run
• 10:57
  Speaker 1: until 2004, well after Congress enacted the 2003 amendment to
• 11:02
  Speaker 1: Section 3283. Maxwell's arguments about retroactivity are therefore inapplicable to
• 11:09
  Speaker 1: Counts 3 and 6. Alright folks, we're going to wrap
• 11:11
  Speaker 1: up this episode here, and in the next episode, discussing
• 11:14
  Speaker 1: the topic we're going to pick up, where we left off.
• 11:17
  Speaker 1: And that's with applying Section 3283 to Maxwell complies with Landgraf.
• 11:24
  Speaker 1: All of the information that goes with this episode can
• 11:27
  Speaker 1: be found in the description box. What's up everyone and
• 11:30
  Speaker 1: welcome back to the Epstein Chronicles. In this episode, we're
• 11:34
  Speaker 1: getting right back to the United States government's brief in
• 11:37
  Speaker 1: response to Ghislaine Maxwell's attempt to appeal her sentence. B.
• 11:42
  Speaker 1: Applying Section 3283 to Maxwell complies with Landgraf. Furthermore, under
• 11:48
  Speaker 1: the Landgraf framework, the 2003 amendment to Section 3283 properly
• 11:53
  Speaker 1: applies to pre-enactment conduct for which the statute of limitations
• 11:58
  Speaker 1: had not expired at the time the amendment was passed.
• 12:01
  Speaker 1: Because the statute of limitations had not expired when Congress
• 12:04
  Speaker 1: amended Section 3283 in 2003, that amendment extended the limitations
• 12:10
  Speaker 1: period for prosecuting Maxwell, rendering the charges timely. I. Landgraf
• 12:16
  Speaker 1: Step 1 At step one of the Landgraf analysis, the
• 12:19
  Speaker 1: question is whether Congress has expressly prescribed the statute's proper reach.
• 12:25
  Speaker 1: Landgraf 511 U.S. 280. When evaluating Congress's intent at step one,
• 12:31
  Speaker 1: this court has considered both statutory text and legislative history.
• 12:36
  Speaker 1: In R.E. Enter, Mort Acceptance Company, Secretary Litigation, Enterprise, 391 F. 3D 401,
• 12:42
  Speaker 1: 406 and 408, Second Circuit, 2004. Here the text in
• 12:49
  Speaker 1: history of Section 3283 established that Congress intended to extend
• 12:54
  Speaker 1: the time to bring charges of child sexual abuse in
• 12:57
  Speaker 1: cases where the limitation periods had not yet expired. Prior
• 13:02
  Speaker 1: to 2003, any child sex abuse offense could be prosecuted
• 13:06
  Speaker 1: until the victim reached the age of 25 years, at
• 13:09
  Speaker 1: which point the statute of limitations then in effect would
• 13:12
  Speaker 1: bar prosecution. In 2003's amendment, which was titled No Statute
• 13:17
  Speaker 1: of Limitations for Child Abductions and Sex Crimes, Pub L No. 108-21,
• 13:24
  Speaker 1: Section 202-117, Statute 660, Congress explicitly provided that no statute
• 13:31
  Speaker 1: of limitations that would otherwise preclude prosecution for such an
• 13:35
  Speaker 1: offense shall preclude such prosecution during the life of a child, U.S.
• 13:39
  Speaker 1: Code 18, Section 3283-2003. The amendment draws no distinction between
• 13:46
  Speaker 1: pre-enactment and post-enactment conduct. Instead, as Judge Nathan explained by
• 13:51
  Speaker 1: stating that no statute of limitations that would otherwise preclude
• 13:55
  Speaker 1: prosecution of these offenses will apply. The amendment's plain language, unambiguously,
• 14:00
  Speaker 1: requires that it apply to prosecutions for offenses committed before
• 14:04
  Speaker 1: the date of enactment. Thus, the breadth of the text
• 14:08
  Speaker 1: shows that Congress intended to extend the statute of limitations
• 14:12
  Speaker 1: even for pre-enactment conduct United States v. Jeffries, 405 F. 3D 682-684,
• 14:18
  Speaker 1: 8th Circuit, 2005, reaching same conclusions as Section 3283's predecessor
• 14:26
  Speaker 1: based on similar title and wording of statute, CF Enterprise
• 14:32
  Speaker 1: 391 F. 3D at 407, describing provision that no limitation shall
• 14:36
  Speaker 1: terminate the period within which suit may be filed or
• 14:39
  Speaker 1: as example of statute reflecting clear congressional intent to apply
• 14:44
  Speaker 1: to pre-enactment conduct. Legislative history confirms this conclusion. In initially
• 14:51
  Speaker 1: enacting a special statute of limitations for child sex abuse offenses,
• 14:55
  Speaker 1: Congress sought to make it easier to prosecute offenders who
• 14:58
  Speaker 1: commit sex crimes that may be difficult to detect quickly.
• 15:02
  Speaker 1: Weingarten 865 F. 3D at 54. But that limitation period proved
• 15:08
  Speaker 1: to be inadequate in many cases. HR conference number 108
• 15:13
  Speaker 1: through 66 at 54. Tellingly, the conference report offered the
• 15:18
  Speaker 1: example of a child rapist who could not be prosecuted
• 15:21
  Speaker 1: because he was identified as the perpetrator one day after
• 15:25
  Speaker 1: the victim turned 25. Given that Congress bemoaned those offenders
• 15:29
  Speaker 1: who escaped prosecution, because the limitation period had expired, there
• 15:33
  Speaker 1: is every reason to believe that it intended to preserve
• 15:37
  Speaker 1: the ability to prosecute pre-enactment offenders whose limitation periods had
• 15:41
  Speaker 1: not yet expired. See the United States v. Sure Chief,
• 15:45
  Speaker 1: 438 F. 3d, 920-924, 9th Circuit, 2006. Concluding that in enacting
• 15:46
  Speaker 1: the 2003 amendment, Congress evinced a clear intent to extend
• 15:48
  Speaker 1: the limitations period. Maxwell notes that Congress considered and rejected
• 16:02
  Speaker 1: a retroactivity clause before enacting the 2003 amendment. But as
• 16:07
  Speaker 1: Judge Nathan recognized, the legislative history makes clear that Congress
• 16:12
  Speaker 1: abandoned the retroactivity provision because it would have produced unconstitutional results. A-152,
• 16:19
  Speaker 1: discussing co-sponsor remarks expressing concern that the proposed retroactivity provision
• 16:25
  Speaker 1: was a doubtful constitutionality, because it would have revived the
• 16:29
  Speaker 1: government's authority to prosecute crimes that were previously time-barred. Thus,
• 16:33
  Speaker 1: the rejection of the Retroactivity Clause shows only that Congress
• 16:37
  Speaker 1: intended to limit the PROTECT Act to its constitutional applications,
• 16:41
  Speaker 1: including past conduct, like Maxwell's, on which the statute of
• 16:45
  Speaker 1: limitations had not yet expired. The reach of the 2003
• 16:49
  Speaker 1: amendment to Section 3283 is clear. Because Congress has expressly
• 16:54
  Speaker 1: extended the statute of limitations to pre-enactment conduct, Judge Nathan
• 16:59
  Speaker 1: correctly resolved this analysis at Landgraf Step 1. In the alternative, however,
• 17:04
  Speaker 1: the statute is, at worst, ambiguous. If the Court takes
• 17:08
  Speaker 1: that view, it should proceed to Landgraf Step 2, which
• 17:11
  Speaker 1: examines the retroactive effects of the statute. 2. Landgraf Step
• 17:16
  Speaker 1: 2 As the Supreme Court explained in Landgraf, Even absent
• 17:20
  Speaker 1: specific legislative authorization, applying a statute to pre-enactment conduct is
• 17:25
  Speaker 1: unquestionably proper in many situations. 511 U.S. at 273. A
• 17:31
  Speaker 1: statute does not operate retrospectively merely because it is applied
• 17:35
  Speaker 1: in a case arising from conduct antedating the statute's enactment
• 17:40
  Speaker 1: or upsets expectations based on prior law. ID at 269. Instead,
• 17:45
  Speaker 1: the question is whether the statute would impair rights a
• 17:48
  Speaker 1: party possessed when he acted, increase the party's liability for
• 17:52
  Speaker 1: past conduct, or impose new duties with respect to transactions
• 17:56
  Speaker 1: already completed. Idea 280. Importantly, the fact that a new
• 18:01
  Speaker 1: procedural rule was instituted after the conduct giving rise to
• 18:05
  Speaker 1: the suit does not make the application of the rule
• 18:08
  Speaker 1: at trial retroactive. Because parties have diminished reliance interests in
• 18:13
  Speaker 1: matters of procedure and because rules of procedure regulate secondary
• 18:18
  Speaker 1: rather than primary conduct. Idea 275. In Vernon v. Casadega
• 18:24
  Speaker 1: Valley Central School District 49 F. 3D 886 2nd Circuit 1995.
• 18:31
  Speaker 1: This court considered a new statute of limitations that shortened
• 18:35
  Speaker 1: the time to file certain discrimination claims and held that
• 18:38
  Speaker 1: applying the new statute in a case filed after its
• 18:42
  Speaker 1: enactment but arising out of events that predate its enactment
• 18:46
  Speaker 1: is not impermissibly retroactive under Landgraf. Id. 889 and 90.
• 18:52
  Speaker 1: As the court explained, the conduct to which the statute
• 18:54
  Speaker 1: of limitations applies is not the primary conduct of the defendants,
• 18:58
  Speaker 1: the alleged discrimination, but is instead the secondary conduct of
• 19:03
  Speaker 1: the plaintiffs, the filing of their suit. ID at 890.
• 19:08
  Speaker 1: The 2003 amendment to section 3283 likewise applies only to
• 19:13
  Speaker 1: the secondary conduct of filing a criminal case. It does
• 19:16
  Speaker 1: not apply to the primary conduct of Maxwell's child sexual
• 19:20
  Speaker 1: abuse by, for example, modifying the elements of an offense
• 19:24
  Speaker 1: to criminalize conduct that previously had not constituted a crime.
• 19:28
  Speaker 1: CID at 891. Landgraf, in other cases, continents treating statutes
• 19:33
  Speaker 1: of limitations differently from statutory provisions that affect substantive rights. Thus,
• 19:39
  Speaker 1: like the new statute in Vernon, the 2003 amendment impaired
• 19:43
  Speaker 1: no rights possessed by either party, increased neither party's liability,
• 19:47
  Speaker 1: nor imposed any new duties with respect. to past transactions.
• 19:52
  Speaker 1: ID at 890. Enterprise does not alter this conclusion. Therefore,
• 19:57
  Speaker 1: this court considered whether an amended statute of limitations operated
• 20:01
  Speaker 1: to revive already expired securities fraud claims. Enterprise 391 F. 3D
• 20:05
  Speaker 1: at 405. While acknowledging that under Vernon, retroactive application of
• 20:12
  Speaker 1: a revised statute of limitations generally does not have an
• 20:16
  Speaker 1: impermissible retroactive effect, the court concluded that the resurrection of
• 20:20
  Speaker 1: previously time-barred claims has an impermissible retroactive effect, ID at
• 20:25
  Speaker 1: 409 and 410, emphasis removed. Enterprise has no application here,
• 20:30
  Speaker 1: as the limitations period for the charges against Maxwell did
• 20:34
  Speaker 1: not expire before the statute of limitations was extended. Thus,
• 20:38
  Speaker 1: unlike Enterprise, where resurrection of expired claims would have stripped
• 20:42
  Speaker 1: defendants of a complete, affirmative defense they previously possessed. Idea 410. Here,
• 20:49
  Speaker 1: Maxwell never possessed that complete defense. Judge Nathan correctly concluded
• 20:54
  Speaker 1: that the 2003 amendment accordingly did not deprive Maxwell of
• 20:59
  Speaker 1: any vested rights. To be sure, this court has observed
• 21:02
  Speaker 1: that there may be colorable arguments that the logic of
• 21:06
  Speaker 1: enterprise extends to criminal cases where the defendant's statute of
• 21:10
  Speaker 1: limitations defense had not vested when the limitations period was
• 21:14
  Speaker 1: extended because the extension increases the period of time during
• 21:18
  Speaker 1: which a defendant can be sued, thereby increasing a defendant's
• 21:22
  Speaker 1: liability for past conduct. Weingarten 865 F. 3d at 57 says,
• 21:28
  Speaker 1: See also United States v. Miller, 9-11, F. 3D, 638, 644-646,
• 21:35
  Speaker 1: 1st Circuit, 2018. Discussing potential defense arguments. But such a
• 21:41
  Speaker 1: claim runs headlong into the vast weight of retroactivity decisions,
• 21:46
  Speaker 1: which recognize that revoking a vested statute of limitations defense
• 21:51
  Speaker 1: is different from retroactively extending the filing period for a
• 21:55
  Speaker 1: still viable claim. Weingarten, 865, F. 3d at 57. For example,
• 22:02
  Speaker 1: in the criminal context, there is a consensus that extending
• 22:05
  Speaker 1: a limitations period before prosecution is time-barred does not run
• 22:10
  Speaker 1: afoul of the ex post facto clause of the Constitution,
• 22:14
  Speaker 1: Cruz v. Maipa, As this court explained long ago, while
• 22:17
  Speaker 1: it is unfair and dishonest for the government to assure
• 22:20
  Speaker 1: a man that he has become safe from the pursuit
• 22:21
  Speaker 1: but then withdraw its assurances, it is permissible to extend
• 22:46
  Speaker 1: a statute of limitations while the chase is on. Falter v.
• 22:50
  Speaker 1: United States, 23F. 2D, 420, 426, 2nd Circuit, 1928, Elhan J.
• 22:58
  Speaker 1: These ex post facto cases are particularly instructive here because
• 23:03
  Speaker 1: Landgraf and the ex post facto clause are informed by
• 23:06
  Speaker 1: the same retroactivity concerns. Cruz, 773, F. 3D at 145. See
• 23:13
  Speaker 1: also Landgraf 511 U.S. at 266, citing the ex post
• 23:17
  Speaker 1: facto clause as an expression as the entire retroactivity principle
• 23:22
  Speaker 1: it was applying. Thus, applying Section 3283's 2003 Amendment to
• 23:27
  Speaker 1: Maxwell's unexpired charges is permissible under Landgraf. As the Tenth
• 23:33
  Speaker 1: Circuit recently explained with respect to the very same Statute
• 23:36
  Speaker 1: of Limitations at issue here, by extending the unexpired Statute
• 23:40
  Speaker 1: of Limitations, Congress did not increase defendant's exposure to prosecution retroactively.
• 23:46
  Speaker 1: It did not raise the penalty for the charged offense.
• 23:49
  Speaker 1: It did not redefine the offense to make it easier
• 23:51
  Speaker 1: to establish. It did not expose defendant to criminal prosecution anew.
• 23:55
  Speaker 1: It merely altered the ongoing charging period for the conduct
• 23:59
  Speaker 1: that had already exposed him to criminal prosecution. Defendant was
• 24:03
  Speaker 1: subject to indictment in 2002 before the statutes of limitations
• 24:08
  Speaker 1: were extended, and he remained the subject to indictment In 2007,
• 24:13
  Speaker 1: once the changes were made, a dead charge was not
• 24:15
  Speaker 1: resurrected and the underlying nature of defendants' potential criminal liability
• 24:20
  Speaker 1: remained the same. United States v. Pyatt, 45F, 4th Circuit, 1142, 1161,
• 24:24
  Speaker 1: and 62, 10th Circuit, 2022. The decisions of other courts
• 24:26
  Speaker 1: of appeals are in accord. Sure Chief, 438, F. 3D, at 922-25, Jeffries, 405, F. 3D
• 24:42
  Speaker 1: at 685. Maxwell cites United States v. Richardson, 512, F. 2D, 105,
• 24:49
  Speaker 1: 3rd Circuit, 1975, and two district court decisions that are
• 24:53
  Speaker 1: bound to follow it, BR, 58 and 59. But Richardson,
• 24:58
  Speaker 1: which was decided before Landgraf, is inconsistent with Landgraf. United
• 25:03
  Speaker 1: States v. Nader, 425, F.SUPP 3D 619-630, Eastern District, Virginia, 2019. Specifically,
• 25:13
  Speaker 1: Richardson focused on whether Congress expressed a clear intention to
• 25:17
  Speaker 1: overcome the presumption against retroactivity. 512 F. 2D at 106, without
• 25:24
  Speaker 1: engaging in Landgraf's second step, i.e., considering whether the statute
• 25:28
  Speaker 1: would have retroactive effect. Landgraf 511 U.S. at 280. Moreover,
• 25:33
  Speaker 1: unlike the 2003 Amendment, the statute at issue in Richardson
• 25:38
  Speaker 1: did not expressly provide that no statute of limitations that
• 25:41
  Speaker 1: would otherwise preclude prosecution of the relevant offense shall preclude
• 25:46
  Speaker 1: prosecution under terms of the amended statute. In sum, the
• 25:50
  Speaker 1: statute of limitations for the charges in the indictment had
• 25:54
  Speaker 1: not yet expired when the 2003 Amendment to Section 3283
• 25:58
  Speaker 1: extended the limitations period, and Judge Nathan correctly determined that
• 26:03
  Speaker 1: applying the 2003 amendment in this case does not create
• 26:07
  Speaker 1: impermissible retroactive effects. Therefore, Step 2 of Landgraf is satisfied,
• 26:13
  Speaker 1: and Section 3283 applies retroactively. See Weingarten 865 F. 3d at 55.
• 26:21
  Speaker 1: If a statute would not create impermissible retroactive effects, then
• 26:25
  Speaker 1: the court should apply the statute to antecedent conduct. Accordingly,
• 26:29
  Speaker 1: the charges were timely. All right, folks, we're going to
• 26:32
  Speaker 1: wrap up this episode right here. And in the next episode,
• 26:35
  Speaker 1: we're going to pick up where we left off with
• 26:37
  Speaker 1: section 3283 reaches count three and count four. All of
• 26:42
  Speaker 1: the information that goes with this episode can be found
• 26:45
  Speaker 1: in the description box. What's up, everyone? And welcome back
• 26:49
  Speaker 1: to the Epstein Chronicles. In this episode, we're going to
• 26:52
  Speaker 1: pick up where we left off with the United States
• 26:55
  Speaker 1: response in brief to Glenn Maxwell's attempt to get an appeal. 2.
• 27:02
  Speaker 1: Section 3283 reaches Counts 3 and 4. Maxwell separately argues
• 27:08
  Speaker 1: that Section 3283 does not apply to Counts 3 and
• 27:11
  Speaker 1: 4 because neither is an offense involving the sexual or
• 27:14
  Speaker 1: physical abuse of a child. Maxwell contends that these counts,
• 27:19
  Speaker 1: which charged her with transporting a minor with intent that
• 27:22
  Speaker 1: the minor engage in illegal sexual activity and conspiracy to
• 27:25
  Speaker 1: do the same, are not offenses involving the sexual abuse
• 27:29
  Speaker 1: of a child, because a completed sex act is not
• 27:32
  Speaker 1: an essential element of either charge. But Maxwell does not
• 27:35
  Speaker 1: dispute that the evidence at trial established that her commission
• 27:39
  Speaker 1: of counts three and four involved completed sex acts abusing
• 27:43
  Speaker 1: one or more minor victims. Nor could she, as Jane testified,
• 27:47
  Speaker 1: that she was, in fact, sexually abused when transported across
• 27:51
  Speaker 1: state lines, including to New York as a minor. Instead,
• 27:55
  Speaker 1: Maxwell insists that counts three and four do not involve
• 27:58
  Speaker 1: sexual abuse of a child because a completed sex act
• 28:01
  Speaker 1: is not an element of those crimes. This argument misreads
• 28:04
  Speaker 1: the relevant statutes and legislative history, and runs contrary to
• 28:08
  Speaker 1: the decision of this court and other courts of appeals. A.
• 28:13
  Speaker 1: Counts 3 and 4 are offenses involving the sexual abuse
• 28:16
  Speaker 1: of a child. Maxwell's entire argument is based on a
• 28:20
  Speaker 1: mistaken premise, that the phrase offense involving the sexual abuse
• 28:24
  Speaker 1: of a child, U.S. Code 18, Section 3283, only encompasses
• 28:29
  Speaker 1: crime in which unlawful sexual activity actually took place. This
• 28:34
  Speaker 1: flawed proposition ignores relevant statutory definitions, which make clear that
• 28:38
  Speaker 1: Section 3283 reaches more broadly to include offenses in which
• 28:43
  Speaker 1: there were no completed illegal sex act. As described above,
• 28:48
  Speaker 1: Section 3283 was originally codified at U.S. Code 18, Section 3509-K.
• 28:55
  Speaker 1: The definition of the term sexual abuse is is located
• 28:58
  Speaker 1: within the same section. For purposes of this section, the
• 29:02
  Speaker 1: term sexual abuse includes the employment, use, persuasion, inducement, enticement,
• 29:08
  Speaker 1: or coercion of a child to engage in or assist
• 29:12
  Speaker 1: another person to engage in sexually explicit conduct or the rape, molestation, prostitution,
• 29:18
  Speaker 1: or other form of sexual exploitation of children or incest
• 29:22
  Speaker 1: with children. U.S. Code 18, Section... 35.09a.8, the term sexually
• 29:28
  Speaker 1: explicit conduct is in turn defined to mean, among other things,
• 29:32
  Speaker 1: sexual intercourse, including sexual conduct, and the term sexual contact
• 29:36
  Speaker 1: means the intentional touching, either directly or through closeness. of
• 29:40
  Speaker 1: the genitalia, anus, groin, breast, inner thigh, or buttocks of
• 29:45
  Speaker 1: any person with the intent to abuse, humiliate, harass, degrade,
• 29:49
  Speaker 1: or arouse a gratifying sexual desire of any person. I.D.
• 29:54
  Speaker 1: Section 3509A, 9 and A. Courts have looked into the
• 29:58
  Speaker 1: definition of sexual abuse set forth in Section 3509A to
• 30:03
  Speaker 1: determine whether the statute of limitations of Section 3283 applies
• 30:08
  Speaker 1: to an offense. United States v. Carpenter, 680, F. 3d, 1101, 1103,
• 30:11
  Speaker 1: and 4, 9th Circuit, 2012. We join our sister circuits
• 30:13
  Speaker 1: in looking at Subsection 3509A for a definition of sexual
• 30:23
  Speaker 1: abuse under federal law and find it the appropriate definition
• 30:27
  Speaker 1: to use in applying Section 3283's extended statute of limitations.
• 30:33
  Speaker 1: The definition of sexual abuse includes not only actual sexual contact,
• 30:39
  Speaker 1: but also the employment, use, persuasion, inducement, enticement, or coercion
• 30:44
  Speaker 1: of a child to engage in or assist another person
• 30:47
  Speaker 1: to engage in sexual contact. U.S. Code 18, Section 3509A.
• 30:52
  Speaker 1: The breadth of the definition is underscored by Congress's use
• 30:56
  Speaker 1: of the word includes in Section 3509A' s text, which is
• 31:00
  Speaker 1: significant because it makes clear that the examples enumerated in
• 31:05
  Speaker 1: the text are intended to be illustrative, not exhaustive. Christopher v.
• 31:10
  Speaker 1: Smith-Kline Beecham Corp. 567 U.S. 142.162.2012, citing Burgess v. United
• 31:13
  Speaker 1: States 552 U.S. 124.131.3.2008, and the text of Section 3283
• 31:15
  Speaker 1: goes even further beyond the definition provided in Section 3509
• 31:17
  Speaker 1: by covering any crime involving the sexual abuse of a child. Congress, therefore,
• 31:22
  Speaker 1: did not require a that a particular statute have actual
• 31:40
  Speaker 1: sexual contact with a minor as an element of its offense,
• 31:44
  Speaker 1: but rather swept broadly to cover any crime that in
• 31:47
  Speaker 1: any way involves sexual abuse as broadly defined. Given this
• 31:52
  Speaker 1: expansive language, sexual abuse as defined here encompasses a wider
• 31:56
  Speaker 1: set of behavior than just rape or other unwanted sexual touching.
• 32:00
  Speaker 1: United States v. Schneider, 801 F. 3d, 186, 197, 3rd Circuit, 2015. Thus,
• 32:08
  Speaker 1: courts throughout the country have concluded that Section 3283 applies
• 32:12
  Speaker 1: to a variety of offenses that do not require a
• 32:15
  Speaker 1: sexual act between a defendant and a specific child. United
• 32:19
  Speaker 1: States v. Vickers No. 13 CR 128 RJA 2014 WL
• 32:21
  Speaker 1: 183 8255 at 11 WDNY May 8, 2014 or physical
• 32:23
  Speaker 1: contact with the victim Carpenter 680 F. 3D at 1103 according
• 32:39
  Speaker 1: to the United States v. Deal 775, 714, 720, 5th Circuit, 2015.
• 32:48
  Speaker 1: Section 3283's definition thus captures crimes of intent where a
• 32:52
  Speaker 1: perpetrator seeks to have a minor engage in sexual contact
• 32:56
  Speaker 1: even if such sexual contact does not occur. Transportation of
• 33:00
  Speaker 1: a minor with intent to engage in a legal sex
• 33:03
  Speaker 1: act as charged in Count 4 and conspiracy to commit
• 33:06
  Speaker 1: the same as charged in Count 3 fall comfortably within
• 33:10
  Speaker 1: that definition. Even though a completed sex act is not
• 33:13
  Speaker 1: required to commit those two crimes, Count 4 has sexual
• 33:16
  Speaker 1: abuse as an element because it requires the defendant to
• 33:20
  Speaker 1: induce a child to engage in illegal sexual activity by
• 33:24
  Speaker 1: transporting the minor across state lines with an intent that
• 33:27
  Speaker 1: the child engage in an illegal sex act. U.S. Code 18,
• 33:31
  Speaker 1: Section 3509A8 and Count 3 as a conspiracy to commit
• 33:35
  Speaker 1: Count 4 is an offense involving such sexual abuse. ID
• 33:41
  Speaker 1: at 3283. See United States v. Scentsy, No. 08CR253, WWE, 2010, WL,
• 33:43
  Speaker 1: 2351484 at 2, N3, Connecticut, June 7, 2010. Collecting Cases
• 33:45
  Speaker 1: Interpreting the term sexual abuse to encompass all crimes that
• 33:47
  Speaker 1: would logically relate to the common understanding of sexual abuse
• 33:51
  Speaker 1: is even when found in Chapters 110, Sexual Exploitation and
• 34:10
  Speaker 1: Other Abuse of Children, and 117, Transportation of Illegal Sexual
• 34:15
  Speaker 1: Activity and Related Crimes of Title 18, Schneider, 801 F. 3d,
• 34:21
  Speaker 1: at 196-97, holding that Section 3283 applied the defendant convicted
• 34:27
  Speaker 1: of traveling with the purpose of engaging in sex with
• 34:30
  Speaker 1: a minor victim in violation of U.S. Code 18, Section 2423b, Accordingly,
• 34:37
  Speaker 1: even considering only the elements of the offenses, Counts 3
• 34:40
  Speaker 1: and 4 fall squarely within Section 3283's definition of an
• 34:45
  Speaker 1: offense involving sexual abuse of a child. b. Maxwell's argument
• 34:50
  Speaker 1: for use of a categorical approach lacks merit. Because Counts
• 34:54
  Speaker 1: 3 and 4 qualify, As offenses involving the sexual abuse
• 34:58
  Speaker 1: of a child, U.S. Code 18, Section 3283, even without
• 35:02
  Speaker 1: resort to the facts of the case, the court need
• 35:05
  Speaker 1: not to address Maxwell's claim that the categorical approach applies
• 35:09
  Speaker 1: in this context. But the arguments Maxwell advances in support
• 35:13
  Speaker 1: of her claims are meritless in any event. Maxwell first
• 35:17
  Speaker 1: relies on Section 3283's use of the phrase offense involving
• 35:21
  Speaker 1: the sexual abuse of a child, which she contends dictates
• 35:25
  Speaker 1: looking only to the elements of the offense. But as
• 35:28
  Speaker 1: this court has already recognized, Section 3283's text reaches beyond
• 35:33
  Speaker 1: the offense and its legal elements to the conduct involved
• 35:36
  Speaker 1: in the offense, a linguistic expansion that shows Congress's intent
• 35:41
  Speaker 1: for courts to look beyond the bare legal charges in
• 35:44
  Speaker 1: deciding whether Section 3283 applied. Weingarten, H65, F. 3D at 59
• 35:50
  Speaker 1: and 60. See also Nijuin versus Holder 557, U.S. 29, 32, 38, 2009.
• 35:57
  Speaker 1: Holding that a statute that includes an offense involves phrase
• 36:02
  Speaker 1: is consistent with the circumstance specific approach. Indeed, the Third
• 36:07
  Speaker 1: Circuit has expressly rejected an essential ingredient test comparable to
• 36:11
  Speaker 1: to the categorical approach and instead applied case-specific analysis to
• 36:16
  Speaker 1: determine that Section 3283 applied to travel with intent to
• 36:20
  Speaker 1: commit an illegal sex act with a minor in violation
• 36:23
  Speaker 1: of U.S. Code Section 2423B Schneider 801 F. 3D at 196
• 36:30
  Speaker 1: and 197. Maxwell also argues that the clearer weight of
• 36:34
  Speaker 1: authority holds that statutes employing similar language should be read
• 36:38
  Speaker 1: through a categorical rather than case-specific lens. but the decision
• 36:42
  Speaker 1: she cites involves statutes with other features favoring the categorical approach,
• 36:47
  Speaker 1: which are notably absent here. Some cases involve statutes that
• 36:51
  Speaker 1: define the crime of violence as an offense that either
• 36:55
  Speaker 1: has an element, the use of physical force, or by
• 36:58
  Speaker 1: its nature, involves a substantial risk of force, language that
• 37:02
  Speaker 1: invokes an elements-based approach. United States v. Davis, 139, Supreme Court, 2319-10.
• 37:07
  Speaker 1: 2328 and 29, 2019, Leocal v. Ashcroft, 543 U.S., 1
• 37:17
  Speaker 1: and 7, 2004. Some cases concerned the definition of an
• 37:21
  Speaker 1: aggravated felony under federal immigration law, Kawashima v. Holder, 565 U.S., 478, Leocal,
• 37:25
  Speaker 1: 543 U.S., 7, a context in which the categorical approach
• 37:28
  Speaker 1: traditionally applies to because the inquiry is whether the alien's
• 37:38
  Speaker 1: prior conviction meets the definition. Weingarten, 865 F. 3D, at 59,
• 37:44
  Speaker 1: and United States v. Morgan, 393 F. 3D, 192, D.C. Circuit, 2004,
• 37:52
  Speaker 1: is likewise distinguishable as it involved a venue statute presenting
• 37:56
  Speaker 1: significantly different concerns than those presented here. Maxwell also relies
• 38:02
  Speaker 1: on a trio of cases, chief among them Bridges v.
• 38:04
  Speaker 1: United States, 346 U.S. 209, 1953. In Bridges, the Supreme
• 38:10
  Speaker 1: Court applied an essential ingredient test to determine whether an
• 38:14
  Speaker 1: offense qualified for a provision that extended the criminal limitations
• 38:18
  Speaker 1: period for certain fraud offenses. Weingarten, 865 F. 3D at 59
• 38:24
  Speaker 1: and 10. But as this court has explained, Bridges is
• 38:27
  Speaker 1: distinguishable because the Supreme Court there believed applying the restrictive
• 38:32
  Speaker 1: essential ingredient test to determine if an offense involved the
• 38:36
  Speaker 1: defrauding of the United States, effectuated Congress's specific intent to
• 38:40
  Speaker 1: limit the extended limitations period to only a few offenses.
• 38:45
  Speaker 1: While Congress had the opposite intention for Section 3283, i.d.
• 38:48
  Speaker 1: the other two cases, United States v. Sharton, 285 U.S. 518, 1932,
• 38:51
  Speaker 1: and United States v. Novak, 271 U.S. 201, 1926, are
• 39:02
  Speaker 1: distinguishable on similar grounds. In any event, the essential ingredient
• 39:06
  Speaker 1: test does not help Maxwell. As discussed above, an offense
• 39:10
  Speaker 1: involving the sexual abuse of a child, U.S. Code 18,
• 39:13
  Speaker 1: Section 3283, must be read in light of the definition
• 39:17
  Speaker 1: of sexual abuse, set forth in Section 3509A, which encompasses
• 39:22
  Speaker 1: a wide range of conduct that is not limited to
• 39:25
  Speaker 1: actual sexual contact with the child. Counts 3 and 4
• 39:28
  Speaker 1: each have an essential ingredient that fits with a broad definition.
• 39:32
  Speaker 1: See Supra Point 2B2A. Finally, neither Deal nor United States v.
• 39:39
  Speaker 1: Contentos 651 F. 3D 809 8th Circuit 2011 supports the use
• 39:45
  Speaker 1: of a categorical approach. In each decision, the court concluded
• 39:49
  Speaker 1: that Section 3283 applied to the subject offenses without considering
• 39:53
  Speaker 1: the specific facts of the crime, but in neither case
• 39:56
  Speaker 1: did the court consider whether a categorical approach was required,
• 40:00
  Speaker 1: let alone hold that it was. As noted above, it
• 40:03
  Speaker 1: is undisputed that the evidence at trial established that Maxwell's
• 40:07
  Speaker 1: commission of counts 3 and 4 involved completed sex acts
• 40:11
  Speaker 1: abusing one or more minor victims. Jane testified that she
• 40:15
  Speaker 1: was in fact sexually abused when transported across state lines,
• 40:19
  Speaker 1: including to New York as a minor. Accordingly, counts three
• 40:22
  Speaker 1: and four qualify as offenses involving the sexual abuse of
• 40:25
  Speaker 1: a child, both by their statutory terms and based on
• 40:29
  Speaker 1: the specific facts of this case. All right, folks, we're
• 40:32
  Speaker 1: going to wrap up right here. And in the next episode,
• 40:34
  Speaker 1: we're going to pick up with point three. The district
• 40:37
  Speaker 1: court did not abuse its discretion in concluding that Juror
• 40:40
  Speaker 1: 50 could be fair and impartial, notwithstanding his inadvertent mistakes
• 40:45
  Speaker 1: on his juror questionnaire. All of the information that goes
• 40:48
  Speaker 1: with this episode can be found in the description box.