Petition for Writ of Certiorari — Laurie Weinlein, Petitioner v. United States

Supreme Court briefOct 21, 2024

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No. _____

In the Supreme Court of the United States

Laurie Weinlein,

Petitioner,

United States of America,

Respondent.

On Petition for a Writ of Certiorari to

the United States Court of Appeals for the Second Circuit

PETITION FOR A WRIT OF CERTIORARI

Eugene R. Fidell

Yale Law School

Supreme Court Clinic

127 Wall Street

New Haven, CT 06511

(203) 432-4992

Michael B. Kimberly

Counsel of Record

Paul W. Hughes

Sarah P. Hogarth

Andrew Lyonsberg

Charles Seidell

McDermott Will & Emery LLP

500 North Capitol Street NW

Washington, DC 20001

(202) 756-8000

mkimberly@mwe.com

Counsel for Petitioner

QUESTION PRESENTED

Criminal restitution is a court-ordered financial liability imposed upon a convicted offender to compensate

victims of a crime for financial losses caused. Restitution

is typically ordered as part of a criminal sentence, as it

was in this case. It thus “implicates the prosecutorial

powers of government” and “serves punitive purposes,”

in addition to remedial ones. Paroline v. United States,

572 U.S. 434, 456 (2014).

Restitution comprises two substantive elements:

(1) the amount owed and (2) the period of time before

which the liability expires. In this case, defendant Laurie

Weinlein was ordered to pay around $2.185 million in restitution. Pursuant to the Victim and Witness Protection

Act of 1982, which was in effect at the time of her offense

conduct, Weinlein was liable to pay that sum during a period of 20 years from the date of final judgment in her

criminal case. Congress later enacted the Mandatory Victims Restitution Act, which now provides that “[t]he liability to pay a [sum of restitution] shall terminate the later

of 20 years from the entry of judgment or 20 years after

the release from imprisonment.” 18 U.S.C. § 3613(b). The

government seeks to collect restitution from Weinlein

under the MVRA’s longer liability period.

The lower courts are intractably divided on whether a

legislative extension of the expiration date for restitution

liability may be applied retroactively, consistent with the

Ex Post Facto Clause. The Second, Eighth, and Ninth

Circuits and the highest courts of Washington, Kansas,

and Michigan have held that it may be, although for

differing reasons; the Third and Sixth Circuits and the

West Virginia Supreme Court have disagreed.

The question presented is whether the retroactive enlargement of a restitution liability period violates the Ex

Post Facto Clause.

TABLE OF CONTENTS

Question Presented ........................................................i

Table of Authorities .................................................... iii

Introduction .................................................................. 1

Opinions Below .............................................................2

Jurisdiction ...................................................................2

Constitutional and Statutory Provisions Involved .........2

Statement......................................................................3

A. Statutory background .........................................3

B. Factual background ............................................3

C. Procedural background ...................................... 4

Reasons for Granting the Petition ................................. 6

A. There is a deep and acknowledged conflict

over the question presented. .............................. 6

1. Two circuits and one state high court

disagree with the decision below ................... 7

2. Two circuits and three state high courts

are aligned with the decision below on

differing rationales ....................................... 9

3. The split is producing troubling

disparity in enforcement of the Ex Post

Facto Clause ............................................... 11

B. The question presented is important, and

this is a suitable vehicle for review. .................. 12

C. Retroactive application of the MVRA’s

later restitution expiration date violates

the Ex Post Facto Clause .................................. 18

Conclusion .................................................................. 21

Appendix A (court of appeals decision) ........................ 1a

Appendix B (district court decision) .......................... 28a

iii

TABLE OF AUTHORITIES

Cases

Buck v. Beard,

879 A.2d 157 (Pa. 2005) .................................... 16

Calder v. Bull,

3 U.S. (3 Dall.) 386 (1798) ........................ 5, 18, 19

Collins v. Youngblood,

497 U.S. 37 (1990) ....................................... 18, 20

Duncan v. Missouri,

152 U.S. 377 (1894)............................................ 18

Gonzalez v. United States,

792 F.3d 232 (2d Cir. 2015) ............................... 19

Lapp v. State,

220 P.3d 534 (Alaska Ct. App. 2009) ................. 16

Mikhlov v. Festinger,

102 N.Y.S.3d 170 (N.Y. App. Div. 2019).. 11, 12, 16

Miller v. United States,

77 F.4th 1 (1st Cir. 2023)...................................... 5

Paroline v. United States,

572 U.S. 434 (2014) ..................................... 10, 19

Pasquantino v. United States,

544 U.S. 349 (2005)..................................... 10, 19

People v. Kwolek,

48 Cal. Rptr. 2d 325 (Cal. Ct. App. 1995) ........... 16

People v. Lowe,

60.P.3d 753 (Colo. App. 2002) ........................... 16

People v. Neilly,

No. 165185, 2024 WL 3333179

(Mich. July 8, 2024) ...................................... 11, 17

Cases—continued

People v. White,

64 Cal. Rptr. 2d 245 (Cal. App. 1997)................. 16

State v. Cota,

319 P.3d 242 (Ariz. Ct. App. 2014)..................... 16

State v. Dominguez,

992 P.2d 995 (Utah Ct. App. 1999) .................... 16

State v. Feliciano,

81 P.3d 1184 (Haw. 2003) .................................. 16

State v. Flygare

356 P.3d 698 (Utah Ct. App. 2015) .................... 16

State v. Galligo,

551 N.W.2d 303 (S.D. 1996) .............................. 10

State v. O’Connor,

827 P.2d 480 (Ariz. Ct. App. 1992) .................... 16

State v. Schultz,

980 P.2d 1265 (1999) .................................... 9, 10

State v. Serio,

987 P.2d 133 (Wash. Ct. App. 1999) .................. 16

State v. Short,

350 S.E.2d 1 (W. Va. 1986) .................................. 8

State v. Thaut,

103 P.3d 1012 (Mont. 2004) ............................... 16

State v. Weinbrenner,

795 P.2d 235 (Ariz. Ct. App. 1990) .................... 16

State v. Werner,

1 P.3d 760 (Haw. Ct. App. 2000) ........................ 16

Tonge v. Werholtz,

109 P.3d 1140 (2005) ......................................... 10

United States v. Adams,

363 F.3d 363 (5th Cir. 2004) ............................. 19

Cases—continued

United States v. Anthony,

25 F.4th 792 (10th Cir. 2022) ............................ 19

United States v. Blackwell,

852 F.3d 1164 (2017) ........................................... 9

United States v. Ellingburg,

113 F.4th 839 (2024)............................... 10, 17, 19

United States v. Grant,

715 F.3d 552 (4th Cir. 2013) .............................. 19

United States v. Leahy,

438 F.3d 328 (3d Cir. 2006) ............................... 19

United States v. Lillard,

935 F.3d 827 (9th Cir. 2019) .............................. 19

United States v. Norwood,

49 F.4th 189 (3d Cir. 2022) ................... 6-8, 20, 21

United States v. Norwood,

No. 20-3478 (3d Cir. Jan. 7, 2022) ................... 4, 7

United States v. Schulte,

264 F.3d 656 (2001) ........................................ 8, 9

United States v. Siegel,

153 F.3d 1256 (11th Cir. 1998) ........................... 19

United States v. Sosebee,

419 F.3d 451 (6th Cir. 2005) .............................. 19

United States v. Tull-Abreu,

921 F.3d 294 (1st Cir. 2019)............................... 19

United States v. Weinlein,

109 F.4th 91 (2d Cir. 2024) ................................ 20

Weaver v. Graham,

450 U.S. 24 (1981) ............................................. 20

Constitutional Provisions

U.S. Const. art. I, § 9, cl. 3 ................................... 2, 16

U.S. Const. art. I, § 10, cl. 1 ...................................... 16

Statutes

18 Pa. Cons. Stat. § 1106 (2024) .............................. 13

42 Pa. Cons. Stat. § 9721 ......................................... 13

18 U.S.C.

§ 3613(b) .............................................................. 3

§ 3613(b)(1) (1995)........................................... 2, 3

18 U.S.C. § 3663A(a)(1) ........................................... 19

28 U.S.C. § 1254(1) .................................................... 2

730 Ill. Comp. Stat. § 5/5-5-6 (2024)....................... 13

Ala. Code §§ 15-18-65 (2024) .................................. 13

Alaska Stat. § 12.55.045 (2024) .............................. 13

An Act Amending Titles 42 (Judiciary and

Judicial Procedure) and 61 (Prisons and

Parole), No. 115, 2019 Pa. Laws 776 .................. 15

An Act Authorizing Payment by the Texas

Department of Criminal Justice of Certain

Amounts Owed By an Inmate, ch. 368,

2023 Tex. Sess. Law Serv. .................................. 15

An Act Concerning Crimes, Punishment and

Criminal Procedure, ch. 92, 2024 Kan.

Sess. Laws 1797.................................................. 14

An Act Concerning Criminal Procedure—

Restitution Orders—Recording Fees, ch.

740, 2023 Md. Legis. Serv. ................................. 14

An Act Concerning Enhancing Restitution

Services for Victims, ch. 263, 2022 Colo.

Sess. Laws .......................................................... 14

vii

Statutes—continued

An Act Concerning Fees, Fines, and Assessments, P.A. 100-987, 2018 Ill. Laws 6390 ......... 15

An Act Concerning Victim's Rights and

Restitution, P.A. 18-128, 2018 Conn. Acts

756 (Reg. Sess.) .................................................. 15

An Act Relating to the Administration of

Justice, L.B. 50, 2023 Neb. Laws 1 .................... 15

An Act Relating to Crimes and Punishments,

ch. 174, 2024 ...................................................... 14

An Act Relating to Criminal Justice, ch. 250,

2023 Nev. Legis. Serv. ........................................ 15

An Act Relating to Including Retroactive

Applicability Provisions, Ch. 80, 2021

Iowa Acts 162 ..................................................... 15

An Act Relating to Legal Financial

Obligations, ch. 260, 2022 Wash. Sess.

Laws 1863 .......................................................... 15

An Act Relating to Lien Fees, ch. 9, 2022 Ariz.

Sess. Laws 57 ..................................................... 14

An Act Relating to Miscellaneous

Amendments to Alcoholic Beverage and

Tobacco Laws, No. 73, 2019 Vt. Acts &

Resolves 761 ....................................................... 15

An Act Relating to Public Safety, No. 278,

2022 Haw. Sess. Laws 765 ................................. 14

An Act Relating to Public Safety, S.B. 53 & 60,

2021 Mo. Laws 825 ............................................ 15

An Act Relating to Restitution, 2018 Alaska

Sess. Laws ch. 21 ................................................ 15

An Act Relating to Restitution, ch. 134, 2023

N.D. Laws 572 .................................................... 15

viii

Statutes—continued

An Act Relating to Restitution, ch. 2021-172,

2021 Fla. Laws 2054 .......................................... 15

An Act Relating to Restitution, ch. 57, 2022

Or. Legis. Serv. ................................................... 15

An Act Relating to State Government, ch. 52,

2023 Minn. Laws 810 ......................................... 15

An Act Requiring Courts to Order Restitution

to Victims of Crime Where It is Economically Practicable, ch. 72, 2019 W. Va.

Acts 696 ............................................................. 15

An Act Requiring Interest to Be Levied on

Criminal Restitution and Fines, ch. 509,

2023 Mont. Laws 1491 ....................................... 15

An Act to Amend the Indiana Code Concerning

State and Local Administration, P.L. 1442024, 2024 Ind. Acts 2256 ................................ 14

An Act to Amend the Penal Law, ch. 61, 2023

N.Y. Laws 526 .................................................... 15

An Act to Amend Tennessee Code Annotated,

Title 40, Chapter 35, Part 3, Relative to

Restitution, ch. 811, 2024 Tenn. Legis.

Serv. ................................................................... 15

An Act to Amend…the Code of Virginia,

Relating to Orders of Restitution;

Enforcement, ch. 393, 2021 Va. Acts 1183 ......... 15

An Act to Make Base Budget Appropriations

for Current Operations of States Agencies,

Departments, and Institutions, and for

Other Purposes, S.L. 2021-180, 2021 N.C.

Sess. Laws 833 ................................................... 15

Statutes—continued

An Act to Make Changes Relative to the Rights

of Crime Victims, H.B. 343, 2022 Ohio

Laws 1 ................................................................ 15

An Act to Require the Consideration of

Restitution to Support a Child Whose

Parent is Killed During the Commission of

a Crime, ch. 277, 2023 Me. Laws 480 ................. 14

An Act to Update Certain Provisions Regarding

the Department of Corrections and the

Authority of the Secretary of Corrections,

2023 S.D. Sess. Laws ch. 82, 172 ....................... 15

An Act…Relating to Fines, Fees, Costs,

Assessments, and Restitution, ch. 441, 83

Del. Laws 1 (2022) ............................................. 14

Ariz. Rev. Stat. Ann. § 13-804 (2024) ...................... 13

Ark. Code Ann. § 5-4-205 (2024) ............................. 13

Cal. Penal Code § 1202.4 (West 2024) ..................... 13

California Victims of Crime Act, 2024 Cal.

Legis. Serv. Ch. 651 ............................................ 14

Colo. Rev. Stat. § 18-1.3-601 (2024) ........................ 13

Conn. Gen. Stat. § 53a-28(c) (2024)......................... 13

Del. Code Ann. tit. 11, § 4106(d)(2) (2024) .............. 13

Del. Code Ann. tit. 11, § 9014 (2024) ....................... 13

Fla. Stat. § 775.089 (2024) ...................................... 13

Ga. Code Ann. § 17-14-2 (2024) ............................... 13

Haw. Rev. Stat. § 706-646 (2024) ........................... 13

Idaho Code § 19-5304 (2024) .................................. 13

Ind. Code § 35-50-5-3 (2024) ................................... 13

Iowa Code § 910 (2024) ........................................... 13

Statutes—continued

Kan. Stat. Ann. § 21-6604 (2024) ............................ 13

Ky. Rev. Stat. Ann. § 533.030 (West 2024) ............. 13

Ky. Rev. Stat. & R. Serv. .......................................... 14

La. Code Crim. Proc. Ann. art. 883.2 (2024) ............ 13

Mass. Gen. Laws. ch. 258B, § 3 ................................ 13

Md. Code Ann., Crim. Proc. § 11-601 ........................ 13

Me. Stat. tit. 17, § 2001 (2024) ................................ 13

Mich. Comp. Laws § 769.1a (2024) .......................... 13

Minn. Stat. § 611A.04 (2024)................................... 13

Miss. Code Ann. § 99‐37‐3 (2024) ........................... 13

Mo. Rev. Stat. § 559.105 .......................................... 13

Mont. Code Ann. § 46‐18‐241 (2024) ....................... 13

N.C. Gen. Stat. § 15A-1340.34 (2024) ..................... 13

N.D. Cent. Code § 12.1‐32‐08 (2024) ....................... 13

N.H. Rev. Stat. Ann. § 651:62 (2024) ..................... 13

N.J. Stat. Ann. § 2C:43-3 (West 2024) .................... 13

N.M. Stat. Ann. § 31‐17‐1 ......................................... 13

N.Y. Penal Law § 60.27(1) (McKinney 2024) ........... 13

Neb. Rev. Stat. § 29‐2280 (2024) ............................ 13

Nev. Rev. Stat. § 176.064 (2023) ............................. 13

Nev. Rev. Stat. § 176A.430 (2023) .......................... 13

Ohio Rev. Code Ann. § 2929.18 (West 2024) ........... 13

Okla. Stat. tit. 22, § 991f (2024) .............................. 13

Or. Rev. Stat. § 137.106 (2024) ............................... 13

Protect Arkansas Act, No. 659, 2023 Ark.

Acts 3494 ........................................................... 14

Pub. L. 104-132, title II, § 211 (Apr. 24, 1996) ....... 3, 4

R.I. Gen. Laws § 12-19-32 (2024) ............................ 13

Statutes—continued

Restitution Revisions, ch. 330, 2024 Utah

Legis. Serv. ......................................................... 15

S.C. Code Ann. § 17-25-322 (2024) ......................... 13

S.D. Codified Laws § 23A‐28‐1 (2024)..................... 13

Sentence and Punishment-Jails-Reorganization,

ch. 416, 2018 Miss. Laws 780............................. 15

Tenn. Code Ann. § 40‐35‐304 (2024) ...................... 13

Tex. Code Crim. Pro. Ann. art. 42.037 (West

2024).................................................................. 13

Utah Code Ann. § 77-38b-101 (West 2024) .............. 13

Va. Code Ann. § 19.2‐305 (2024) ............................. 13

Vt. Stat. Ann. tit. 13, § 7043 (2024) ......................... 13

W. Va. Code § 61‐11A‐4 (2024) ................................ 13

Wash. Rev. Code § 9.94A.750 (2024) ...................... 13

Wis. Stat. § 973.20 (2024) ....................................... 13

Wyo. Stat. Ann. § 7-9-101 (2024)............................. 13

Other Authorities

Cortney E. Lollar, What is Criminal

Restitution?, 100 Iowa L. Rev. 93 (2014) ............ 14

Federal Criminal Restitution: Most Debt is

Outstanding and Oversight of Collections

Could be Improved, Government

Accountability Office (2018).............................. 14

The Federalist No. 84 (Alexander Hamilton) ............ 17

Iowa Restitution Paid, Iowa Department of

Human Rights (2018) ......................................... 14

Office of Justice Programs, Minnesota Restitution

Working Group: Report to the Legislature, Minnesota Department of Public Safety (2015) ......... 14

INTRODUCTION

This case presents an important and frequently recurring question of law that has divided the lower courts:

Does the retroactive enlargement of a criminal restitution

liability period violate the Ex Post Facto Clause?

In this case, petitioner Laurie Weinlein was convicted

of a financial crime and ordered to pay restitution for acts

committed in 1994 and 1995. At the time of Weinlein’s

offense conduct, the Victim and Witness Protection Act

(VWPA) governed restitution liability. Under that law,

Weinlein’s restitution obligation terminated in 2020. But

Congress later enacted the Mandatory Victims Restitution Act (MVRA), enlarging the enforcement period for

restitution obligations. Under the revised provision,

Weinlein still bears liability for restitution today.

The lower courts are deeply and openly divided over

the question of whether it is a violation of the Ex Post

Facto Clause to enlarge retroactively the period of time

during which restitution is owed. For varying reasons, the

federal courts of appeals for the Second, Eighth, and

Ninth Circuit and the highest courts of Washington, Kansas, and Michigan have held that retroactive application

of restitution laws do not violate the Ex Post Facto

Clause. By contrast, the Third and Sixth Circuits and the

West Virginia Supreme Court have held that they do.

Proper resolution of the question presented is a matter of tremendous practical importance. Federal and state

legislatures frequently amend their criminal restitution

laws, including in ways that may be understood to increase the punishment that restitution imposes. In just

the past two years, state lawmakers have enacted 24 such

amendments. And criminal defendants frequently challenge restitution orders made under the retroactive application of those amended laws.

This case presents a suitable vehicle for resolving this

frequently recurring issue. The question presented was

fully preserved at every stage of litigation below, and the

Second Circuit’s answer to the question is what drove the

outcome. Moreover, a live controversy is certain to persist, given that the government will imminently foreclose

on the only real property that Weinlein owns and already

has caused her injury seeking restitution post-2020.

Finally, the Second Circuit’s decision in this case is

wrong. Restitution is penal in nature. And the length of

time a defendant must pay restitution is a core component

of the punishment imposed. When the district court below

applied the MVRA’s longer restitution liability limitation

to Weinlein for conduct governed by the VWPA, it retroactively enlarged the punishment levied upon her. That’s

a straightforward Ex Post Facto Clause violation, and the

Second Circuit was wrong to hold otherwise. Immediate

review is therefore warranted.

OPINIONS BELOW

The Second Circuit’s opinion (App., infra, 1a-27a) is

published at 109 F.4th 91. The district court’s memorandum decision and order (App., infra, 28a-36a) is not reported.

JURISDICTION

The Second Circuit entered its opinion and judgment

on July 25, 2024. App., infra, 1a. This Court’s jurisdiction is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Article I, section 9, clause 3 of the United States Constitution provides that “No * * * ex post facto Law shall

be passed.”

In 1995, 18 U.S.C. § 3613(b) provided that “[a] lien

becomes unenforceable and liability to pay a fine expires * * * twenty years after the entry of the judgment.”

As since amended by the Mandatory Victims Restitution

Act of 1996, that same code provision now provides that

“The liability to pay restitution shall terminate on the

date that is the later of 20 years from the entry of judgment or 20 years after the release from imprisonment of

the person ordered to pay restitution.”

STATEMENT

A. Statutory background

The Victim and Witness Protection Act of 1982

(VWPA) governed restitution obligations for more than a

decade. Under the Act, a defendant’s liability for restitution terminated 20 years after the entry of judgment. See

18 U.S.C. § 3613(b)(1) (1995).

Congress enacted and President Clinton signed the

Mandatory Victims Restitution Act (MVRA) in 1996.

Under that statute, which remains in effect today, a

defendant’s liability for restitution now terminates 20

years after the later of entry of judgment or release from

prison. See 18 U.S.C. § 3613(b). By its terms, the MVRA

is made retroactively applicable to pre-enactment conduct

“in cases in which the defendant is convicted on or after

the date of [its] enactment,” but only “to the extent

constitutionally permissible.” Pub. L. 104-132, title II,

§ 211 (Apr. 24, 1996), 110 Stat. 1241.

B. Factual background

Weinlein was convicted of bank fraud and embezzlement in October 1998 (after the MVRA’s enactment) for

offense conduct taking place between September 1994

and February 1995 (before the MVRA’s enactment). See

App., infra, 2a-4a.

In February 2000, Weinlein was sentenced to 63

months of imprisonment and five years of supervised release. App., infra, 4a. And in April 2000, she was ordered

to pay $2.185 million in restitution. Id. at 4a.

Weinlein made nearly 50 payments while incarcerated. App., infra, 4a. Upon release from prison, she made

30 more. Ibid. But Weinlein struggled to keep up with her

financial obligations, and between 2014 and 2021, the

government made no effort to collect. Id. at 4a-5a.

On April 11, 2020—20 years after the entry of final

judgment against her—Weinlein’s restitution liability

expired under the VWPA.

But one year and two days after that, the government

renewed its collection efforts all the same. It ordered

Weinlein to complete a financial statement describing,

among other things, her monthly income, bank accounts,

and real estate holdings. App., infra, 4a-5a. It later subpoenaed those financial records and Weinlein’s testimony

about them. Ibid.

Around two years after Weinlein’s restitution liability expired under the VWPA, the government commenced

foreclosure proceedings against Weinlein’s real property

in Corinth, Texas. In another recent case, the government

has taken the position that a lien may be foreclosed even

after the liability expiration date if the proceedings were

commenced before that date. See Br. Appellee 9, United

States v. Norwood, No. 20-3478 (3d Cir. Jan. 7, 2022).

C. Procedural background

1. In July 2021, the government issued a subpoena

duces tecum for Weinlein’s financial records and for her

testimony in the criminal case in the Northern District of

New York. App., infra, 5a.

Weinlein moved to quash the subpoenas and terminate her restitution obligation. Ibid. As relevant here, she

argued that the Ex Post Facto Clause forbade application

of the MVRA’s extended liability period and that under

the VWPA, her period of restitution liability expired on

April 11, 2020.

The district court denied the motion to terminate her

restitution liability. App., infra, 28a-36a. While the court

acknowledged that restitution may be “punitive in nature,” bringing it within the scope of the Ex Post Facto

Clause, it held that the MVRA enacted a mere “procedural change” to the “length of time in which the Government may enforce a restitution order.” App., infra, 32a.

Expanding the duration of Weinlein’s liability for restitution without changing the underlying amount levied

therefore did not, in the court’s view, amount to an increase in the “measure of punishment attached to [the]

crime.” Ibid.

2. The Second Circuit affirmed. App., infra, 1a-27a.

The court of appeals correctly recognized that, under this

Court’s precedents, the Ex Post Facto Clause asks

whether a change in law “changes the punishment, and

inflicts a greater punishment, than the law annexed to the

crime, when [it was] committed.” App., infra, 12a

(quoting Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798)

(opinion of Chase, J.)). But it held that retroactive

extension of the expiration date for enforcement of a

restitution order is merely procedural and does not inflict

greater punishment.

On this front, the court analogized an extension of the

expiration date for enforcement of a restitution order to

an enlargement of the statute of limitations applicable to

a crime whose original statute of limitations had not yet

expired. Because the federal courts of appeals have held

that “‘Congress may retrospectively extend a still-open

criminal statute of limitations without offending the

Constitution,’” the courts held that “Congress may

* * * extend the enforcement period of a restitution order,

at least before the original enforcement period has

expired, without violating the Ex Post Facto Clause.”

App., infra, 14a-15a (quoting Miller v. United States, 77

F.4th 1, 7 (1st Cir. 2023) (SOL case)).

In reaching that conclusion the lower court registered

its disagreement with the Third Circuit’s contrary holding on the same issue in United States v. Norwood, 49

F.4th 189 (3d Cir. 2022). App., infra, 15a-21a.

REASONS FOR GRANTING THE PETITION

This case presents the question whether the retroactive enlargement of a restitution liability period violates

the Ex Post Facto Clause. In conflict with the Third Circuit and the West Virginia Supreme Court, but in agreement with the Eighth and Ninth Circuits and the highest

courts of Washington and Kansas, the Second Circuit

held that it does not.

That decision should not stand. Aside from deepening

a recognized conflict among the lower courts, the decision

below is manifestly wrong. To extend the time during

which an individual is subject to restitution liability and

thus must make payments or face the risk of government

seizure of property is plainly to enlarge the punishment

imposed. To do so retroactively is thus a violation of the

Ex Post Facto Clause. Given how frequently states amend

their criminal restitution statutes, this issue arises—and

will continue to arise—in a great many cases. And this is

an ideal opportunity to resolve the conflict. Further review should be granted.

A. There is a deep and acknowledged conflict over

the question presented.

Both federal and state courts are deeply divided over

whether the retroactive application of a longer restitution

liability period violates the Ex Post Facto Clause. Two circuits and state high courts hold that it does violate the

clause because restitution is punitive, and a longer liability period thereby increases one’s punishment. Several

courts disagree but have arrived at their contrary conclusions via different reasoning—whereas four circuits and

state high courts hold that a longer liability period does

not increase an individual’s punishment, two circuits and

state high courts have concluded that restitution is not

punitive at all. The disarray on the question presented is

intolerable. Only this Court can bring clarity on this important issue.

1. Two circuits and one state high court disagree

with the decision below

Here, the Second Circuit held that retroactive application of the MVRA’s longer liability period does not violate the Ex Post Facto Clause.

In square conflict with the Second Circuit, the Third

Circuit held in United States v. Norwood, 49 F.4th 189

(2022), that retroactively applying the MVRA’s longer

restitution liability period violates the Ex Post Facto

Clause. The court there began by explaining that “being

subject to restitutionary liability is its own form of criminal punishment, independent of the amount a defendant

owes, such that extending the duration of a defendant’s

liability period may itself violate the Ex Post Facto

Clause.” Id. at 218-219.

Because a restitution order “creates a lien * * * in

favor of the Government and imposes on the defendant a

punitive legal obligation,” which “continues until the

lien ‘is satisfied, remitted, set aside, or is terminated,’”

the Norwood court held that “any extension of the liability period is a de facto increase of a criminal punishment.”

Id. at 219 (citation omitted). The court also noted that the

“collateral consequences” that attach to restitution liability, such as being denied the right to vote or own a firearm, the suspension of one’s driver’s license, and stricter

conditions of supervised release, are punitive. Ibid.

Thus, the Third Circuit concluded, “retroactive application of the MVRA to Norwood would increase his

punishment by subjecting him to additional decades of

liability, supervision, and collateral consequences, even if

he ultimately never paid a cent more than he would have

under the VWPA.” Id. at 220.

As the Second Circuit expressly recognized (App.,

infra, 15a), that holding conflicts with the decision below

and the decisions of other circuits.

The West Virginia Supreme Court reached a similar

conclusion as the Third Circuit in State v. Short, 350

S.E.2d 1 (W. Va. 1986). That case involved West Virginia’s Victim Crime Protection Act of 1984, which gave

state authorities the power to enforce restitution orders

past the expiration of the offender’s probation, which previously had been the limit for enforcement of restitution

orders in the state.

The court there explained that “[t]he question on this

appeal is whether the retroactive application of the Victim

Protection Act of 1984 would constitute an ex post facto

law in violation of” the federal and state constitutions. Id.

at 2. The Court held that it would: The new law “gives the

State much broader powers, including the ability to enforce an order of restitution beyond the period of probation in the same manner as a civil judgment,” which “represents a change in the law” adding an “extra penalty

which could not have been imposed under the older law.”

Ibid. “The retroactive application of the Victim Crime

Protection Act [thus] increased the punishment” of the

offender “and is an ex post facto application of the law

and is therefore void.” Ibid. That is the opposite of the

Second Circuit’s holding in this case.

The Sixth Circuit has aligned with the Third Circuit

and West Virginia court. In United States v. Schulte, 264

F.3d 656 (2001), the Sixth Circuit held that “restitution

imposed under the VWPA is punishment for the purpose

of the Ex Post Facto Clause.” Id. at 662. Accordingly, the

MVRA categorically may not be applied retroactively.

That is, “where an act was committed prior to the effec-

tive date of the MVRA, the retroactive application of the

MVRA to that act violates the Ex Post Facto Clause.”

Ibid. That is the exact proposition that the Second Circuit

rejected in this case; it held instead that the MVRA may

be applied retroactively to Weinlein’s pre-enactment conduct. In any one of these courts—the Third or Sixth Circuits or the West Virginia Supreme Court—the outcome

in this case would have been different.

2. Two circuits and three state high courts are

aligned with the decision below on differing

rationales

a. Three courts have aligned with the Second Circuit,

reasoning that an enlargement of a restitution liability period does not augment the punishment imposed and thus

does not implicate the Ex Post Facto Clause.

The Ninth Circuit upheld retroactive application of

the MVRA’s longer restitution liability period in United

States v. Blackwell, 852 F.3d 1164 (2017). Drawing a distinction between procedural and substantive rights, the

court there held that retroactively extending the MVRA’s

enforcement period is procedural only. Id. at 1166. Because the extension “merely increased the time period

over which the government could collect” without enlarging the sum of money owed, it did not affect the defendant’s “substantive rights.” Id. Thus, in the Ninth Circuit’s view, no Ex Post Facto Clause violation resulted.

The Washington Supreme Court employed the same

reasoning in State v. Schultz, 980 P.2d 1265 (1999).

There, a criminal defendant had challenged the application of a new sentencing law to his pre-enactment conduct. Like the Ninth Circuit, the Washington Supreme

Court held that the amendments had no effect on the defendant’s “quantum of punishment” because they did not

make him liable for a larger sum of money. Id. at 1269.

Because a criminal defendant “has no legal right to pay

less than he was ordered to pay” by passage of time, the

Washington court reasoned that “his punishment is not

increased by extending the length of time the [government] can collect on the restitution order.” Id.

The Kansas Supreme Court followed a similar line of

reasoning in Tonge v. Werholtz, 109 P.3d 1140 (2005). In

Tonge, an inmate challenged the state’s authority to collect an expired disciplinary restitution order. The state

invoked a new regulation that permitted it to collect the

unpaid disciplinary restitution of a discharged inmate if

the inmate was readmitted following a subsequent conviction. Id. at 1142. The Kansas court described the regulation as effecting a “change in procedure” only, which

had “no effect on the underlying disciplinary infractions

or the amount of restitution ordered.” Id. at 1145. The

court held that retroactive application of the regulation

was thus permitted under the Ex Post Facto Clause. See

also State v. Galligo, 551 N.W.2d 303, 304 (S.D. 1996)

(agreeing with procedure/substance distinction).

b. Two other courts have aligned with the judgment

of the Second Circuit, but on the distinct reasoning that

restitution is not punitive at all. But see Pasquantino v.

United States, 544 U.S. 349, 365 (2005) (the MVRA

imposes “criminal punishment”); Paroline v. United

States, 572 U.S. 434, 457 (2014) (criminal restitution

serves “penological purposes”).

The Eighth Circuit held that restitution is not punitive in United States v. Ellingburg, 113 F.4th 839 (2024).

That case, like this one, involved the retroactive application of the MVRA’s longer liability period to pre-enactment conduct. Bound by an earlier decision characterizing

restitution as “essentially a civil remedy,” the Eighth

Circuit held that retroactively extending the period of

time in which a defendant has to pay restitution does not

violate the Ex Post Facto Clause. Id. at 841-842.

The Michigan Supreme Court concluded the same in

People v. Neilly, No. 165185, 2024 WL 3333179 (Mich.

July 8, 2024) (regional reporter publication forthcoming). The court there squarely rejected the notion that

restitution is punitive: “The fact that the imposition of

restitution imposes some financial pain on defendants to

effectuate this goal does not render restitution penal

because the focus of the current restitution statutes

remains ‘on the victims’ losses’ rather than on further

punishment of the defendants.” Id. at *4. “Given this

conclusion,” the court held, “the trial court’s application

of the current restitution statutes on defendant during

resentencing does not violate the Ex Post Facto Clauses

of the United States and Michigan Constitutions because

it does not constitute a retroactive increase in punishment.” Id. at *9.

3. The split is producing troubling disparity in

enforcement of the Ex Post Facto Clause

The courts of appeals and state high courts are thus

deeply divided on the question presented, and the conflict

cannot resolve itself. The results of the split are troubling.

Similarly situated defendants in Detroit are being treated

differently under the Ex Post Facto Clause depending on

whether they are prosecuted in federal court (in the Sixth

Circuit) or state court (in the Michigan courts). And similarly situated defendants in the New York City area are

being treated differently under the Ex Post Facto Clause

depending on whether they are prosecuted on the east

bank of the Hudson River (in the Third Circuit) or the

west bank (in the Second Circuit). This kind of stark

variability in the interpretation and application of the

federal Constitution is unseemly and unjust.

The problem is typified by Mikhlov v. Festinger, 102

N.Y.S.3d 170 (N.Y. App. Div. 2019), a case adjudicated

in a New York state courthouse—just two miles from

where the Second Circuit decided this case. Samuel

Festinger, like Laurie Weinlein, committed criminal acts

in 1995 prior to the enactment of the MVRA. See Mikhlov,

102 N.Y.S.3d at 172 (noting Festinger’s bank fraud

scheme spanned from 1985 to 1995). And Festinger, like

Weinlein, was ordered by a federal court to pay criminal

restitution totaling around $2 million. Ibid. In 2016, one

of Festinger’s victim creditors, Ilya Mikhlov, attempted

to enforce the restitution order in New York state court.

Ibid. Mikhlov’s standing to file suit in state court turned

on whether the VWPA or the MVRA governed the restitution order. The state appellate court held the MVRA constitutionally could not apply:

It is the VWPA rather than the MVRA that should

be applied to the claim here. The criminal conduct qualifying for mandatory restitution * * * occurred in 1995, before the effective date of the

MVRA * * *. Consequently, there was no conviction in relation to mandatory restitution after the

effective date of the MVRA. Thus, the MVRA is

not applicable. Applying the MVRA instead of the

VWPA would violate the Constitution's ex post

facto prohibition.

Id. at 173 (emphasis added).

Two defendants, two similar restitution orders, and

two cases heard just two miles apart—but only one was

allowed to claim the shelter of our nation’s first and oldest individual right. Core constitutional rights should not

hinge upon which courthouse door a defendant walks

through. This Court’s intervention is plainly warranted.

B. The question presented is important, and this is

a suitable vehicle for review.

The question presented is a matter of tremendous

practical importance. Criminal restitution statutes are

ubiquitous and often subject to amendment at both the

federal and state level. The question presented thus arises

frequently. This case is a clean and uncomplicated vehicle

for resolving this critical constitutional issue.

1. The question presented arises with substantial frequency. Over the last 40 years, criminal restitution statutes have become a load-bearing pillar of the American

criminal justice system. In what some have termed the

“Restitution Revolution,” all 50 states1 enacted criminal

See, e.g., Ala. Code §§ 15-18-65 to 15-18-78 (2024); Alaska Stat.

§ 12.55.045 (2024); Ariz. Rev. Stat. Ann. §§ 13-804, 13-806 (2024);

Ark. Code Ann. § 5-4-205 (2024); Cal. Penal Code § 1202.4 (West

2024); Colo. Rev. Stat. §§ 18-1.3-601 to 18-1.3-603 (2024); Conn.

Gen. Stat. § 53a-28(c) (2024); Del. Code Ann. tit. 11, §§ 4106(d)(2),

9014 (2024); Fla. Stat. § 775.089 (2024); Ga. Code Ann. § 17-14-2

(2024); Haw. Rev. Stat. § 706-646 (2024); Idaho Code § 19-5304

(2024); 730 Ill. Comp. Stat. § 5/5-5-6 (2024); Ind. Code § 35-50-53 (2024); Iowa Code § 910 (2024); Kan. Stat. Ann. § 21-6604

(2024); Ky. Rev. Stat. Ann. § 533.030 (West 2024); La. Code Crim.

Proc. Ann. art. 883.2 (2024); Me. Stat. tit. 17, §§ 2001-2019 (2024);

Md. Code Ann., Crim. Proc. §§ 11-601 to 11-620; Mass. Gen. Laws.

ch. 258B, § 3; Mich. Comp. Laws § 769.1a (2024); Minn. Stat.

§ 611A.04 (2024); Miss. Code Ann. §§ 99‐37‐3 to 99-37-25 (2024);

Mo. Rev. Stat. § 559.105; Mont. Code Ann. § 46‐18‐241 (2024);

Neb. Rev. Stat. §§ 29‐2280 to 29-2289 (2024); Nev. Rev. Stat.

§§ 176A.430, 176.064 (2023); N.H. Rev. Stat. Ann. §§ 651:62 to

651:67 (2024); N.J. Stat. Ann. §§ 2C:43‐3, 2C:44-2 (West 2024);

N.M. Stat. Ann. § 31‐17‐1; N.Y. Penal Law § 60.27(1) (McKinney

2024); N.C. Gen. Stat. § 15A-1340.34 to 15A-1340.39 (2024); N.D.

Cent. Code § 12.1‐32‐08 (2024); Ohio Rev. Code Ann. § 2929.18

(West 2024); Okla. Stat. tit. 22, § 991f (2024); Or. Rev. Stat.

§§ 137.106 to 137.109 (2024); 42 Pa. Cons. Stat. § 9721, 18 Pa.

Cons. Stat. § 1106 (2024); R.I. Gen. Laws §§ 12‐19‐32 to 12-19-34

(2024); S.C. Code Ann. §§ 17‐25‐322 to 17-25-325 (2024); S.D.

Codified Laws §§ 23A‐28‐1 to 23A-28-15 (2024); Tenn. Code Ann.

§ 40‐35‐304 (2024); Tex. Code Crim. Pro. Ann. art. 42.037 (West

2024); Utah Code Ann. §§ 77-38b-101 to 77-38b-402 (West 2024);

Vt. Stat. Ann. tit. 13, § 7043 (2024); Va. Code Ann. §§ 19.2‐305 to

19.2-305.3 (2024); Wash. Rev. Code §§ 9.94A.750, 9.94A.753

(2024); W. Va. Code § 61‐11A‐4 (2024); Wis. Stat. § 973.20 (2024);

Wyo. Stat. Ann. §§ 7-9-101 to 7-9-115 (2024).

restitution statutes. Cortney E. Lollar, What is Criminal

Restitution?, 100 Iowa L. Rev. 93, 99 (2014). And recent

studies suggest that total criminal restitution obligations

surpass $100 billion annually in the United States, affecting countless Americans for decades after their convictions. 2 Given the widespread reliance on criminal restitution as a punitive tool at sentencing, restitution statutes

are a hotbed of legislative experimentation. For example,

24 states have amended their criminal restitution statutes

over the last two years. 3 Over the last six years, 36 states

A Government Accountability Office report estimated that $110

billion in outstanding federal restitution obligations existed at the

end of 2016. Federal Criminal Restitution: Most Debt is Outstanding

and Oversight of Collections Could be Improved, Government Accountability Office 2 (2018), https://perma.cc/H7H4-D2MV. While

comprehensive state data is difficult to obtain, studies commissioned

by the Iowa and Minnesota state governments found, for example,

that each state imposed approximately $25,000,000 of restitution

obligations annually. Office of Justice Programs, Minnesota Restitution Working Group: Report to the Legislature, Minn. Dep’t of Pub.

Safety 16 (2015), https://perma.cc/WM5E-WNKK; Kile Beisner,

SFY 2010 – SFY 2017 Iowa Restitution Paid, Iowa Dep’t of Hum. Rts.

10 (2018), https://perma.cc/W37U-BGTR.

See An Act Relating to Lien Fees, ch. 9, 2022 Ariz. Sess. Laws

57; Protect Arkansas Act, No. 659, 2023 Ark. Acts 3494; California

Victims of Crime Act, 2024 Cal. Legis. Serv. Ch. 651 (West); An Act

Concerning Enhancing Restitution Services for Victims, ch. 263,

2022 Colo. Sess. Laws; An Act…Relating to Fines, Fees, Costs, Assessments, and Restitution, ch. 441, 83 Del. Laws 1 (2022); An Act

Relating to Public Safety, No. 278, 2022 Haw. Sess. Laws 765; An

Act to Amend the Indiana Code Concerning State and Local Administration, P.L. 144-2024, 2024 Ind. Acts 2256; An Act Concerning

Crimes, Punishment and Criminal Procedure, ch. 92, 2024 Kan.

Sess. Laws 1797; An Act Relating to Crimes and Punishments, ch.

174, 2024 Ky. Rev. Stat. & R. Serv. (West); An Act to Require the

Consideration of Restitution to Support a Child Whose Parent is

Killed During the Commission of a Crime, ch. 277, 2023 Me. Laws

480; An Act Concerning Criminal Procedure—Restitution Orders—

have done so. 4

Recording Fees, ch. 740, 2023 Md. Legis. Serv. (West); An Act Relating to State Government, ch. 52, 2023 Minn. Laws 810; An Act

Requiring Interest to Be Levied on Criminal Restitution and Fines,

ch. 509, 2023 Mont. Laws 1491; An Act Relating to the Administration of Justice, L.B. 50, 2023 Neb. Laws 1; An Act Relating to Criminal Justice, ch. 250, 2023 Nev. Legis. Serv. (West); An Act to

Amend the Penal Law, ch. 61, 2023 N.Y. Laws 526; An Act Relating

to Restitution, ch. 134, 2023 N.D. Laws 572; An Act to Make

Changes Relative to the Rights of Crime Victims, H.B. 343, 2022

Ohio Laws 1; An Act Relating to Restitution, ch. 57, 2022 Or. Legis.

Serv. (West); An Act to Update Certain Provisions Regarding the Department of Corrections and the Authority of the Secretary of Corrections, 2023 S.D. Sess. Laws ch. 82, 172; An Act to Amend Tennessee

Code Annotated, Title 40, Chapter 35, Part 3, Relative to Restitution,

ch. 811, 2024 Tenn. Legis. Serv. (West); An Act Authorizing Payment by the Texas Department of Criminal Justice of Certain

Amounts Owed By an Inmate, ch. 368, 2023 Tex. Sess. Law Serv.

(West); Restitution Revisions, ch. 330, 2024 Utah Legis. Serv.

(West); An Act Relating to Legal Financial Obligations, ch. 260,

2022 Wash. Sess. Laws 1863.

See An Act Relating to Restitution, 2018 Alaska Sess. Laws ch.

21; An Act Concerning Victim's Rights and Restitution, P.A. 18-128,

2018 Conn. Acts 756 (Reg. Sess.); An Act Relating to Restitution,

ch. 2021-172, 2021 Fla. Laws 2054; An Act Concerning Fees, Fines,

and Assessments, P.A. 100-987, 2018 Ill. Laws 6390; An Act Relating to Including Retroactive Applicability Provisions, Ch. 80, 2021

Iowa Acts 162; Sentence and Punishment—Jails—Reorganization,

ch. 416, 2018 Miss. Laws 780; An Act Relating to Public Safety, S.B.

53 & 60, 2021 Mo. Laws 825; An Act to Make Base Budget Appropriations for Current Operations of States Agencies, Departments,

and Institutions, and for Other Purposes, S.L. 2021-180, 2021 N.C.

Sess. Laws 833; An Act Amending Titles 42 (Judiciary and Judicial

Procedure) and 61 (Prisons and Parole), No. 115, 2019 Pa. Laws 776;

An Act Relating to Miscellaneous Amendments to Alcoholic Beverage and Tobacco Laws, No. 73, 2019 Vt. Acts & Resolves 761; An

Act to Amend…the Code of Virginia, Relating to Orders of Restitution; Enforcement, ch. 393, 2021 Va. Acts 1183; An Act Requiring

Courts to Order Restitution to Victims of Crime Where It is Economically Practicable, ch. 72, 2019 W. Va. Acts 696.

Thus, unsurprisingly, in addition to the documented

federal split over the MVRA specifically, the question presented arises often in state courts across the country, with

similarly divergent results. As noted, the state supreme

courts of West Virginia, Kansas, and Washington are split

on the question presented. The supreme courts of Montana, Pennsylvania, and Hawaii also have confronted the

question presented but disposed of the cases without deciding the constitutional question. State v. Thaut, 103

P.3d 1012 (Mont. 2004) (holding appellant lacked standing); Buck v. Beard, 879 A.2d 157 (Pa. 2005) (finding appellant failed to properly raise the issue on appeal); State

v. Feliciano, 81 P.3d 1184 (Haw. 2003) (resolving the

case on statutory grounds). At the state intermediate appellate court level, the issue recurs with even greater frequency: from Alaska to Arizona to California to Colorado

to Hawaii to New York to Utah to Washington, 5 this is a

national issue with no clear answer.

Such widespread disagreement on a matter so important as the Ex Post Facto Clause is concerning. The

Clause holds a unique position in the Constitution, applying from the outset not only to the federal government,

but also to the states. See U.S. Const. art. I, § 9, cl. 3

(“[No] ex post facto Law shall be passed.”); U.S. Const.

art. I, § 10, cl. 1 (“No State shall * * * pass any * * * ex

post facto Law”). But as matters now stand, the Nation’s

Lapp v. State, 220 P.3d 534 (Alaska Ct. App. 2009); State v.

Cota, 319 P.3d 242 (Ariz. Ct. App. 2014); State v. O'Connor, 827

P.2d 480 (Ariz. Ct. App. 1992); State v. Weinbrenner, 795 P.2d 235

(Ariz. Ct. App. 1990); People v. Kwolek, 48 Cal. Rptr. 2d 325 (Cal.

Ct. App. 1995); People v. White, 64 Cal. Rptr. 2d 245 (Cal. App.

1997); People v. Lowe, 60.P.3d 753 (Colo. App. 2002); State v. Werner, 1 P.3d 760 (Haw. Ct. App. 2000); Mikhlov, 102 N.Y.S.3d at 170;

State v. Dominguez, 992 P.2d 995 (Utah Ct. App. 1999); State v.

Flygare 356 P.3d 698 (Utah Ct. App. 2015); State v. Serio, 987 P.2d

133 (Wash. Ct. App. 1999).

citizens are not uniformly secure from ex post facto laws,

a “favorite and most formidable instrument of tyranny.”

The Federalist No. 84 (Alexander Hamilton).

2. This case offers a particularly suitable vehicle for

resolving this important constitutional issue.

First, the case allows for a complete presentation of

the question as compared with other similar cases. 6 The

Second Circuit expressly reached and clearly decided the

constitutional issue, and none of the relevant facts are in

dispute. Its decision stands in direct conflict with that of

the Third Circuit with no relevant factual or legal variations differentiating the two decisions. And because the

government has inflicted a range of concrete injuries in

the time since the VWPA period expired (indeed, it is on

the cusp of foreclosing on Weinlein’s property in Texas)

there are no concerns that the case will become moot.

Unlike many other similar cases, this case concerns

only the extension of the enforcement period for a restitution order. By contrast, other cases (especially those arising based on state criminal restitution statutes) often are

infused with related, but analytically distinct issues like

the retroactive expansion of the amount of restitution

owed. The decision below implicates none of these confounding circumstances. The constitutionality of the

retroactive expansion of a defendant’s restitution liability

is presented independently. And to the extent that there is

any lingering doubt that restitution constitutes a punitive

measure, this case gives the Court an opportunity to authoritatively resolve the point.

Two other cases, Ellingburg, 113 F.4th 839 and Neilly, 2024 WL

3333179 at *4, present similar questions, and petitions are expected

in each. But the courts in both Ellingburg and Neilly determined that

restitution is a civil remedy rather than a punitive measure, and thus

neither reached the question whether an extension of a restitution expiration date violates the Ex Post Facto Clause.

C. Retroactive application of the MVRA’s later

restitution expiration date violates the Ex Post

Facto Clause

The clean presentation of an open circuit split on a

constitutional question of great practical importance is

reason enough for the Court to grant certiorari. Review is

all the more warranted because the Second Circuit’s decision is demonstrably wrong.

Application of the MVRA’s extended restitutionary

liability period to Weinlein, whose conduct of conviction

predates the statute’s enactment, violates the Ex Post

Facto Clause. Since the Founding Era, it has been the rule

that a change in the law may not be applied retroactively

if it imposes “an additional punishment to that then prescribed” at the time of commission or if, “in relation to

the offence or its consequences, [it otherwise] alters the

situation of a party to his disadvantage.” Collins v.

Youngblood, 497 U.S. 37, 45-46 (1990) (quoting Duncan

v. Missouri, 152 U.S. 377, 382-383 (1894), and discussing Calder, 3 U.S. at 390).

This describes retroactive application of the MVRA to

Weinlein. Restitution imposed under the MVRA, and its

predecessor the VWPA, is an aspect of the punishment

imposed by the district court. And the length of time during which that liability extends is part of the punishment—lengthening the period increases the punishment

or at least alters Weinlein’s situation to her disadvantage.

The analogy of the Second Circuit (and others) to statute

of limitations periods is misplaced.

1. Both the plain meaning of the MVRA’s text and this

Court’s precedent demonstrate that restitution imposed

under § 3663A is penal. The MVRA states that “when

sentencing a defendant * * * the court shall order, in addition to, or in the case of a misdemeanor, in addition to or

in lieu of, any other penalty authorized by law, that the

defendant make restitution.” 18 U.S.C. § 3663A(a)(1)

(emphasis added). This provision expressly denotes restitution a form of “penalty.”

This Court’s cases are in accord: Congress designed

the MVRA “to mete out appropriate criminal punishment

for [unlawful] conduct.” Pasquantino, 544 U.S. at 365.

And as the Court noted of restitution under a parallel statutory scheme, restitution is intended “to impress upon

offenders that their conduct produces concrete and devastating harms for real, identifiable victims.” Paroline, 572

U.S. at 457. Restitution thus “serves punitive purposes,”

and “penological purposes” in addition to remedial ones.

Id. at 456-457. Thus, nine circuits (including the court

below) have held that restitution is a penalty. 7

2. Because restitution is penal, neither the amount

nor the duration of liability for restitution may be increased retroactively; to do so “inflicts a greater punishment.” Calder, 3 U.S. at 390.

“[T]wo critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospecUnited States v. Tull-Abreu, 921 F.3d 294, 305 (1st Cir. 2019)

(“Restitution is part of a criminal penalty.”); Gonzalez v. United

States, 792 F.3d 232, 236, 236 n.18 (2d Cir. 2015) (“Restitution is a

serious component of criminal punishment”); United States v. Leahy,

438 F.3d 328, 335 (3d Cir. 2006); United States v. Grant, 715 F.3d

552, 554 (4th Cir. 2013); United States v. Adams, 363 F.3d 363, 365

(5th Cir. 2004) (“Restitution under the MVRA is a criminal penalty”); United States v. Sosebee, 419 F.3d 451, 461 (6th Cir. 2005)

(“restitution constitutes punishment”); United States v. Lillard, 935

F.3d 827, 835 (9th Cir. 2019) (“restitution is part of a defendant’s

punishment”); United States v. Anthony, 25 F.4th 792, 798 (10th

Cir. 2022) (“restitution is intended to some degree to inflict criminal

punishment”); United States v. Siegel, 153 F.3d 1256, 1260 (11th Cir.

1998) (“restitution is a criminal penalty carrying with it characteristics of criminal punishment”). See also Ellingburg, 113 F.4th at 842

(collecting cases but reaching opposite conclusion).

tive, that is, it must apply to events occurring before its

enactment, and it must disadvantage the offender affected by it.” Weaver v. Graham, 450 U.S. 24, 29 (1981).

A statute violates the Ex Post Facto Clause “if it is both

retrospective and more onerous than the law in effect on

the date of the offense.” Id. at 30-31.

Retroactive imposition of a longer restitution liability

period plainly disadvantages the offender vis-à-vis her

restitution obligation, falling afoul the Court’s ex post

facto cases. Under the VWPA, Weinlein no longer would

bear any liability to pay restitution today. According to

the Second Circuit, she continues to bear liability today

because the government is applying the MVRA retroactively. That is a straightforward case of enlarging the punishment to which Weinlein is subject—of altering the situation to her disadvantage. Collins, 497 U.S. at 46.

3. The Second Circuit’s analogy between restitution

liability periods and statutes of limitations is not persuasive. According to the Second Circuit, “the effect on

Weinlein of applying the MVRA to extend the enforcement period is analogous to the effect on a criminal defendant of retroactively extending the statute of limitations for a crime that is not yet time-barred.” United

States v. Weinlein, 109 F.4th 91, 99-100 (2d Cir. 2024).

Since statutes of limitations can be extended retroactively, the court reasoned, restitution liability periods can

as well. Id. at 100.

“But the MVRA’s liability period is not a statute of

limitations,” and a restitution “liability period and a statute of limitations have very different legal effects.” Norwood, 49 F.4th at 217. “A statute of limitations creates a

[waivable] procedural bar to * * * prosecuting a crime but

does not extinguish a plaintiff’s underlying rights or the

crime itself.” Ibid. It merely creates an affirmative defense. A restitution liability period, in contrast, “express-

ly extinguishes a defendant’s liability once the liability

period has run,” terminating it altogether. Id. at 218.

Moreover, a statute of limitations concerns only the

time during which criminal charges can be brought for a

crime. It does not change, alter, or augment punishment

itself. Restitution, on the other hand, is a form of punishment in its own right, which the MVRA alters. While

theoretically a statute of limitations might affect the circumstances under which punishment ultimately can be

imposed, it is not itself penal. That is to say, it does not

affect the punishment that the offender risks by committing a given crime. Not so of the liability period for a restitution order, which is an element of punishment itself.

The analogy between these two concepts is faulty and

should not guide ex post facto scrutiny of the MVRA.

CONCLUSION

The Court should grant the petition.

Respectfully submitted.

Eugene R. Fidell

Michael B. Kimberly

Yale Law School

Counsel of Record

Supreme Court Clinic Paul W. Hughes

127 Wall Street

Sarah P. Hogarth

New Haven, CT 06511 Andrew Lyonsberg

(203) 432-4992

Charles Seidell

McDermott Will & Emery LLP

500 North Capitol Street NW

Washington, DC 20001

(202) 756-8000

mkimberly@mwe.com

Counsel for Petitioner

October 21, 2024

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.