Amicus Curiae Brief — Stogner v. California

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MARIO REYNOLDS STOGNER, PETITIONER A a

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STATE OF CALIFORNIA

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e 7 | . ON WRIT OF CERTIORARI

P .s re > Rota naa | _ TO THE COURT OF APPEAL OF CALIFORNIA,

x + ae ia ge Sty _ FIRST APPELLATE DISTRICT

: | ty “Ss ‘BRIEF FOR THE UNITED STATES «Sag

| _ ‘2° .) AS AMICUS CURIAE SUPPORTING RESPONDENT _

; ‘ . ~ ee ty : ‘ ~~

| THEODORE B. OLSON

oy Se | Solicitor General

pots GER So RE ASS Counsel of Record

iS «Rae ee ee MICHAEL CHERTOFF

oe | Ce heey te ae ae .\. MICHABLR.DREEBEN —

" hak FY Sa Ae ey De i ye '» © JRVING L. GORNSTEIN

é Tr Oe aE ee Assistant to the Solicitor

ie es cor Sete sec See TE Sh ae cil JouN F. DE PUE

2 AT Ree Se ee ek 8 ee . vs Attorney

| : Wet ea, ~ 3 OE Ss Set Th AE cee RT : Department of Justice

Pa?

Washington, D.C. 20530-0001

(202) 514-2217

Ase BEST AVAILABLE COPY Maal

(I)

atute violates the Due Process

QUESTIONS PRESENTED

Whether a law that permits the government to prose-

cute an offense for which the statute of limitations had ex-

Whether such a st

pired before the law’s enactment violates the Ex Post Facto

Clause.

Clause

; “Fi

5 - Rea

Interest of the United States

Il.

TABLE OF CONTENTS

A law that permits the prosecution of an offense for

which the statute of limitations had previously ex-

pired does not violate the Ex Post Facto Clause .......

A law that permits the prosecution of an offense

for which the statute of limitations had pre-

viously expired does not criminalize conduct

that was innocent when done and therefore

does not fall within Calder’s first category ..........

A law that permits the prosecution of an offense

for which the statute of limitations had pre-

viously expired does not remove a defense

within the meaning of Calder’s first category .....

A law that permits the prosecution of an offense

for which the statute of limitations had pre-

viously expired does not violate any of the other

Calder categories

Additional precedent supports the constitu-

tionality of laws that permit the prosecution of

offenses for which the statute of limitations had

previously expired

A law that permits the prosecution of an offense

for which the statute of limitations had previously

expired does not deny due process of law ................«:

A. The constitutionality of retroactive crimi-

nal laws is governed by the Ex Post Facto

Clause, not the Due Process Clause

The benefit of an expired limitations period

is not a fundamental right

v7vw7wwre

Page

cambabeacmase-R ss pasees Page Cases—Continued: Page

C. Petitioner's remaining contentions are unper- Landgraf v. USI Films Prods., 511 U.S. 244

Suasive ... . 28 (1994) 24

Conclusion . 30 Lynce v. Mathis, 519 U.S. 433 (1997) —

Mallett v. North Carolina, 181 U.S. 589 (1901) ............... il

TABLE OF AUTHORITIES . Miller v. Florida, 482 U.S. 423 (1987) 12, 20

People v. Crosby, 25 Cal. Rptr. 847 (1962) 13

Cases: People v. Frazer, 88 Cal. Rptr. 2d 312 (1999),

Beazell v. Ohio, 269 U.S. 167 (1925) 11, 17, 20 cert. denied, 529 U.S. 1108 (2000) 3, 4, 9, 12, 28

Calder v. Bull, 3 U.S. (3 Dall.) 385 (1798) ...ccccccc. passim People v. McGill, 51 P.2d 433 (Cal. Dist. Ct.

Campbell v. Holt, 115 U.S. 620 (1885) 27 App. 1935) 12

Carmell v. Texas, 529 U.S. 513 (2000)...... 8, 11, 16, 19, 20, 21 People v. Zamora, 134 Cal. Rptr. 2d 784 (1976) ...........- 12

Chase Securities Corp. v. Donaldson, 325 U.S. Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995) .... 27

304 (1945) 4, 7, 26, 27 Raley v. Ohio, 360 U.S. 423 (1959) 29

Clements v. United States, 266 F 2d 397 (9th Cir.), Rogers v. Tennessee, 532 U.S. 451 (2001) 9

cert. denied, 359 U.S. 985 (1959) 23 Santobello v. New York, 404 U.S. 257 (1971) .ceveessosseseseee 29

Collins v. Youngblood, 497 U.S. 37 (1990)........... 3, 4, 12, 13, Sattazahn v. Pennsylvania, 123 S. Ct. 732

16, 17, 18, 25 (2003) 26

Cummings v. Missouri, 71 U.S. (4 Wall.) 277 Stewart v. Kahn, 78 U.S. (11 Wall.) 493 (1870) ............ 15, 22

(1866) 11, 20 Thompson v. Missouri, 171 U.S. 380 (1898) .............. 11,21

Davis v. Ballard, 24 Ky. (1 J.J. Marsh.) 563 (1829) .......... 15 United States v. Brechtel, 997 F.3d 1108 (5th Cir.

Davis v. Minor, 2 Miss. (1 Howard) 183 (1835) cece. «15 1993) 23

Dobbert v. Florida, 432 U.S. 282 (1977) y United States v. Carlton, 512 U.S. 26 (1994) —

Duncan v. Missouri, 152 U.S. 377 (1894) ll United States v. De La Mata, 266 F.3d 1275

Electrical Workers v. Robbins & Meyers, 429 U.S. 229 (11th Cir. 2001) 23

(1976) 27 United States v, Grimes, 142 F.3d 1342 (11th

Falter v. United States, 23 F.2d 420 (2d Cir.), cert. Cir. 1998), cert. denied, 525 U.S. 1088 (1999)... 23

denied, 277 U.S. 590 (1928) 24, 25 United States v. Hall, 26 F. Cas. 84 (C.C. D. Pa. 1809)

Garland, Ex parte, 71 U.S. (4 Wall.) 383 (1866) oo = 11 (No. 15,285) 17, 18

Garner v. Jones, 529 U.S. 244 (2000) 20 United States v. Knipp, 963 F 2d 839 (6th Cir.

Graham v. Connor, 490 U.S. 386 (1989) 25 1992) we

Gut v. Minnesota, 76 U.S. (9 Wall.) 35 (1869) ...cccccc.o» 11, 13 United States v. Lovasco, 431 U.S. 783 (1997) .......-ee 29

Hopt v. Utah, 110 U.S. 574 (1884) 11, 12,21 United States v. Marion, 404 U.S. 397 (1971) ....... 27, 29

Kring v. Missouri, 107 U.S. 221 (1883) 17, 18 United States v. Taliaferro, 979 F.2d 1399 (10th

Cir. 1992) 23

Weaver v. Graham, 450 U.S. 24 (1981) 9, 20

Constitution and statutes:

U.S. Const.:

Art. I: .

§ 9 (Ex Post Facto Clause (Federal))

§ 10 (Ex Post Facto Clause (State)) ...............

Page

7,24

1, 7, 8, 13,

14, 16, 17, 20, 25

Amend. [IV ...........cs00

Amend. V (Double Jeopardy Clause)

Amend. XIV (Due Process Clause)

Uniting and Strengthening America by Providing

Appropriate Tools required to Intercept and Ob-

struct Terrorism (USA PATRIOT ACT) Act of

2001, Pub. L. No. 107-56, Tit. VIII, § 809, 115 Stat.

379 (18 U.S.C. 3286):

§ 809(a), 115 Stat. 379

§ 80%(b), 115 Stat. 380

Cal. Penal-Code (West 1985 & Supp. 2003):

§ 288(a)

Law Revisien Comm'n Cmt.

§ 803(g)

§ 803(g)(1)

§ 803(g(2)(B)

§ 803(g(3)(A)

§ 803(g(3)(B\i)

Miscellaneous:

Blacks’'s Law Dictionary (1st ed. 1891)

1 William Blackstone, Commentaries on the Laws

of England (1765)

H.R. 5422, 107th Cong., 2d Sess. (2002)

1 James Kent, Commentaries on American Law

(3d ed. 1836) (Lecture 19)

Letter from Daniel J. Bryant to Joseph R. Biden, Jr.

(Nov. 25, 2002)

i, 4, 7,25

COwwanwwnnnd &

Vil

- 2

S. 251 107th Cong., 24 Sess. (2002) -..---vvs--ererererrrrrrnr :

S oan tame Cong., 1st Sess. (2003) ....v-eremwvseernrerrrrrrr

3 Joseph Story, sone tg oot a

of the United States (1833) . : a

2 Rishard Wonk Seema! Vr fy 3

In the Supreme Court of the Anited States

No. 01-1757

MARIO REYNOLDS STOGNER, PETITIONER

STATE OF CALIFORNIA

ON WRIT OF CERTIORARI

TO THE COURT OF APPEAL OF CALIFORNIA,

FIRST APPELLATE DISTRICT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

INTEREST OF THE UNITED STATES

This case involves the constitutionality, under the Ex Post

Facto Clause and the Due Process Clause, of a law that per-

mits the prosecution of an offense for which the statute of

limitations had previously expired. The United States has a

substantial interest in the resolution of those questions.

Congress has recently enacted legislation that eliminates

any statute of limitations for terrorism offenses that result

in, or create a foreseeable risk of, death or serious bodily in-

jury. See Pub. L. No. 107-56, Tit. VIII, § 809(a), 115 Stat.

879 (18 U.S.C. 3286(b)). That new legislation permits the

commencement of terrorism prosecutions that were time-

(1)

barred before the statute’s enactment. § 809(b), 115 Stat.

380. The Attorney General has also forwarded to Congress

proposed legislation to eliminate the statute of limitations

for child abduction and felony sexual offenses and to toll

statutes of limitations in any felony case in which the

perpetrator is identified through DNA evidence. In both

cases, the proposals would apply retroactively to offenses for

which a prosecution was time-barred before the statute’s

enactment. The proposal with respect to child abduction and

felony sexual offenses has been passed by the House of

Representatives, see H.R. 5422, 107th Cong., 2d Sess. § 202

(2002), and a bill embodying both proposals has been intro-

duced in the current Congress, see S. 149, 108th Cong., Ist

Sess. § 8 and § 9 (2003). See also Letter from Daniel J.

Bryant Asst. Att’y Gen., U.S. Dep’t of Justice, to Honorable

Joseph R. Biden, Jr., U.S. Senator 7-10 (Nov. 25, 2002) (re-

garding S. 2513, 107th Cong., 2d Sess. (2002), and discussing

both proposals). Because federal legislation is subject to ex

post facto and due process limits that parallel the limits on

state legislation, the decision in this case could affect the

constitutionality of a recent Act of Congress and constrict

Congress’s authority to enact similar legislation.

STATEMENT

1. In 1984, the California legislature revised its laws gov-

erning the time within which a criminal prosecution may be

commenced. The 1984 law creates three categories of of-

fenses. First, there is no limitations period for certain seri-

ous offenses, such as murder. Cal. Penal Code § 799 (West

1985 & Supp. 2003). Second, for most other serious offenses,

a prosecution must be commenced within six years after

commission of the offense. Jd. § 800. Third, for all other of-

fenses, a prosecution must be commenced within three years

after commission of the offense. Jd. § 801. The 1984 law

nn ee

rmits extensions and tolling of the limitations periods in

posers circumstances. Id. § 803.

i ‘dence that young victims of

= eager gay i those ania in sufficient

exc er re prosecution within the limitations period, “7

Californie legislature amended the 1984 a Bec

ment provides that, effective January 1, 1994, : aye

in sex offenses against persons under e ag a

sal tye menced notwithstanding the expiration 0

ton " map riod if the action is filed within one year of the

pore ey p rman report to a law rearioagnary' —-,

i uct, an

“ on oe gr pirysewner we corroborates

ee ae th Penal Code § 803(g)(1) _

pots “a 2003). After several California Courts :

ae held that the amendment did not apply heer kom

a? applicable statute of limitations had expire

recreinag cnaniienatte effective date, the ce

me ati further amended the law. The new . par

rovides that Section 803(g) applies fo 4 cause ror ay

aoe “before, on, or after, January 1994, and | Ae

paeuer to “revive any cause of action barred by — °

or 801 » Id. § 803(gX3A) and (Bi) & Section 803 La

es ae tian poy yl od 312, 321-322 (1999),

: ‘aus ‘529 US. 1108 (2000), the California —

Suak held that a prosecution commenced in pager ode

the preconditions of Section 803(g) is timely eee i

poste applicable limitations period expired befo

; The Frazer court further held that, as sO oP

et Psiee 803(g) violates neither the prohibition agains

of law.

7 saat mem seacor airy 497 U.S. 37 (1990), the

Frazer court held that a statute violates the prohibition

against ex post facto laws when it retroactively alters the

definition of any crime or increases the puai

fin punishmen

ren act. 88 Cal. Rptr. 2d at 325. The court porte.

t t statutes of limitations that apply retroactively to revi

limitation periods that have expired do not x als ree

wate oa explained that statutes of limitations oper-

- rs ate from prosecution even those individuals

ose conduct otherwise satisfie[s] all elements of a al

statute, and who [are] otherwise subject to criminal a

ment, at the time the conduct occurred.” Jd. at 327 sees

The Frazer court rejected the contention that Section |

803(g) violates the prohibition against ex post facto laws be

cause it removes a defense that would otherwise defeat é'

seer g ay! 88 Cal. Rptr. 2d at 328. The Frazer court in.

par ta ex post facto protection extends only to ‘de-

— fre on the ‘definition’ and ‘elements’ of pro-

yo uct, or involving ‘excuse or justification’ for its

° ussion.” Ibid. (quoting Collins, 497 U.S. at 50). Se

on 803(g) does not exceed those limits, the Frazer court ve

. . -

— spe ft 2 “regulates the time at which child

Code may “ibs ae elsewhere in the Penal

raat court also rejected the contention that Section

ee 7 ~ due process. The court noted that in Chase

py - orp. v. Donaldson, 325 U.S. 304 (1945), this

re e that civil statutes of limitation may be modified

: troactively without violating the Due Process Clau

iri — 2d at 333-334. The Frazer court oe

ta” fom distineniahs mai

somata ie ae or distinguishing criminal statutes of

2. On April 17, 1998, a crimi

P : 8, riminal complaint was filed

= hamcse: charging him with two counts of commit-

othe of Cota He re a in

ornia Penal Code § 288(a) (W

ma est 1992). J.

4 py count alleged that petitioner engaged “ ene

conduct on Jane Doe I between January 1, 1955, and Sep-

tember 30, 1964. J.A. 1. The second count alleged that peti-

tioner engaged in lewd conduct on Jane Doe II between

January 1, 1967, and September 27, 1973. J.A. 2-3. The com-

plaint further alleged that the counts could be prosecuted

under Section 803(g) because the victims were under the age

of 18 when the crimes occurred, the complaints had been

filed within one year of the date when the victims reported

the offenses to a law enforcement agency, the crime involved

substantial sexual conduct, and independent evidence clearly

and convincingly corroborated the victim’s allegations. Ibid.

Petitioner demurred to the complaint on the ground that

Section 803(g) violates the constitutional prohibition against

ex post facto laws. J.A. 6. The Superior Court granted the

demurrer and denied a motion to reinstate the complaint.

Ibid. The Court of Appeal reversed. J.A. 5-8. It held that in

Frazer, “{ojur Supreme Court has rejected the argument

that section 803(g) constitutes an impermissible ex post facto

law.” J.A. 6. This Court denied a petition for a writ of cer-

tiorari. Stogner v. Califonia, cert. denied, No. 99-8895 (Oct.

2, 2000). J.A. 9.

A grand jury then issued an indictment charging peti-

tioner with the same crimes as had been alleged in the com-

plaint. J.A. 10-13. Petitioner demurred to the indictment on

ex post facto and due process grounds, but the trial court

overruled the demurrer. J.A. 14, 34. Relying on Frazier, the

Court of Appeal affirmed, J.A. 38, and the California Su-

preme Court denied review. J.A. 37.

SUMMARY OF ARGUMENT

I. This Court has held that the prohibition against ex

post facto laws encompasses only the four specific categories

of criminal laws identified by Justice Chase in Calder v.

Bull, 3 U.S. (3 Dall.) 385, 390 (1798). A law that permits the

prosecution of an offense for which the statute of limitations

had previously expi ithi

Ba y expired does not fall within any of those

ae first Calder category reaches laws that criminalize

conduct that was innocent at the time the crime was commit-

cual or statute at issue here does not have that effect. In-

stead, it removes a barrier to the prosecution of conduct that

was criminal when the defendant engaged in it. There is no

sound basis for expanding Calder’s first category to reach

laws that change the legal effect of later acts that have re-

vtitee the amearenn ability to prosecute conduct that

criminal when done. Justice Chase’s formulati

ulation—

the conduct must have been “innocent when cae? tae

Xs a (3 Dall.) at 390)—is supported by all the available his-

ric evidence. It accords with one of the core purposes of

the prohibition against ex post facto laws: to assure that

— te fair warning of their effect, so that persons can

conform their conduct to the law And

. , , over the

“ this Court has repeatedly reaffirmed that test. appa

e second and third Calder categories prohibit laws that

either introduce a new punishment or increase the severity -

- the punishment. A law that permits prosecution of crimes

which the statute of limitations had previously expired

oes neither of those things. Instead, its permits the ed

cutor to seek the same punishment that the law authorized

at the time the offense was committed.

Re Calder's fourth category covers laws that alter

mone wor ee ~ as to reduce the amount of evidence

( convict. Laws that permit the prosecuti

crimes for which the statute of limitati : psa

mitations had previous]

expired are not rules of evidence. E i lek tach

- Equally important

statutes do not have any effect on the euliinialtl alien

to aye lish the elements of the crime. | e

; I. ae is also no merit to petitioner's due process

“sare 2 r this Court 8 decisions, if a constitutional claim

y a specific constitutional provision, that claim

must be analyzed under the standard drawn from that provi-

sion, not under the Due Process Clause. Accordingly, the

Constitution’s explicit textual restraint on a legislature’s en-

actment of ex post facto laws, rather than generalized no-

tions of due process, supplies the standard for evaluating

whether a retroactive criminal statute is constitutional.

Even if a separate due process analysis were warranted, a

statute that permits the prosecution of crimes for which the

statute of limitations had previously expired does not impli-

cate any right that is fundamental for due process purposes.

In Chase Securities Corp. v. Donaldson, 325 U.S. 304, 314

(1945), the Court unanimously held that the shelter provided

by the expiration of a limitations period has never been re-

garded as a fundamental right. The Court applied that rule

to a civil case, but for purposes of the Due Process Clause,

there is no persuasive distinction between a criminal and

civil statute of limitations.

Because a statute that revives an expired limitations pe-

riod does not interfere with a fundamental right, the sole

question under the Due Process Clause is whether it is justi-

fied by a rational legislative purpose. Based on the increas-

ing evidence that minors who are victims of sexual offenses

often fail to report them in time to permit timely prosecu-

tion, it was entirely rational for California to apply its new

limitations period retroactively.

ARGUMENT

I. A LAW THAT PERMITS THE PROSECUTION OF

AN OFFENSE FOR WHICH THE STATUTE OF

LIMITATIONS HAD PREVIOUSLY EXPIRED

DOES NOT VIOLATE THE EX POST FACTO

CLAUSE

Article I, Section 10 of the Constitution provides that

“Injo State shall * * * pass any * * * ex post facto Law.”

Article I Section 9, places the same restraint on Congress.

‘

In Calder v. Bull, 3 U.S. (3 Dall.) 385, 389-390 (1798), Justice

Chase concluded that the Constitution’s prohibition against

ex post facto laws reaches four specific categori imi

Pe i i peci gories of criminal

Ist. ; Every law that makes an action done before the

passing of the law, and which was innocent when done

criminal; and punishes such action. 2d. Every law that

aggravates a crime, or makes it greater than it was

when committed. 3d. Every law that changes the pun-

ishment, and inflicts a greater punishment, than the law

annexed to the crime, when committed. 4th. Every law

, that alters the legal rules of evidence, and receives less

. a testimony, than the law required at the time

! - w egg ong of the offense, in order to convict the

This Court has repeatedly approved that formulation as an

accurate statement of the scope of the prohibition against ex

post facto laws. See Carmell v. Texas, 529 U.S. 518, 525

(2000) (citing cases). Because a law that permits the yese-

cution of an offense for which the statute of limitations had

previously expired does not fall within any of the Calder

_ categories, such a law does not violate the Ex Post Facto

Clause.

A. A Law That Permits The Prosecution Of An Of-

fense For Which The Statute Of Limitations Had

ae ae Expired Does Not Criminalize Conduct

as Innocent When Done And Th

Does Not Fall Within Calder’s First oe

1. A law that permits the prosecuti

which the statute of limitations hed atiiar dada des

not fall within Calder’s first category because it does not

a conduct that was “innocent when done.” Calder

S. (8 Dall.) at 390 (Chase, J.). Instead, by retroactively

modifying the statute of limitations for an offense, it permits

prosecution of conduct that was criminal when done.

This case illustrates that fundamental point. The indict-

ment alleges that, between 1955 and 1973, petitioner com-

mitted lewd and lascivious conduct against two minors under

the age of 14. J.A. 10-13. If those allegations are true, peti-

tioner engaged in conduct that was criminal when done. In-

deed, California has prohibited such lewd and lascivious acts

since 1901, and the elements of that offense have been estab-

lished for decades. People v. Frazer, 88 Cal. Rptr. 2d 312,

327 (1999), cert. denied, 529 U.S. 1108 (2000). Because

California had a three-year statute of limitations for lewd or

lascivious conduct when petitioner’s alleged crime occurred,

any attempt to prosecute petitioner for his alleged conduct

would have been barred after 1976 absent the enactment of

California’s new limitations period. J.A. 21-22. But that

simply means that the new limitations period eliminates a

barrier to the prosecution of conduct that was criminal when

done; it does not make criminal what was innocent when

done.

The limitation in Calder’s first category to statu’ «s that

penalize actions that were innocent when done accords with

one of the core purposes of che prohibition against ex post

facto laws—“to assure that legislative Acts give fair warning

of their effect and permit individuals to rely on their mean-

ing until explicitly changed.” Weaver v. Graham, 450 U.S.

24, 28-29 (1981); see Dobbert v. Florida, 432 U.S. 282, 298

(1977). Statutes that penalize conduct that was innocent

when done violate that fair warning principle. Rogers v.

Tennessee, 582 U.S. 451, 459 (2001). Statutes that revive the

government's authority to prosecute conduct that was crimi-

nal, when done, do not.

In this case, for example, if California had criminalized

lewd and lascivious acts against minors under the age of 14

for the first time after petitioner’s alleged conduct occurred,

petitioner would not have received fair warning that his al-

leged conduct was criminal. In fact, however, California has

prohibited such conduct since 1901, and petitioner therefore

received fair warning that such conduct was prohibited. Pe-

titioner cannot reasonably assert that he engaged in such

conduct in reliance on a statute of limitations.

2. Petitioner argues (Br. 10-12) that Calder’s first cate-

gory is not limited to statutes that criminalize actions that

were innocent when done, but also includes statutes that

change the legal significance of “secondary acts” that occur

after the criminal conduct has occurred and divest a criminal

act of its criminal quality. Petitioner identifies the expira-

tion of a limitations period as such a secondary act.

In its express language, however, Calder’s first category

encompasses only statutes that criminalize actions that were

“innocent when done.” 3 U.S. (3 Dall.) at 390. That limita-

tion accords with the understanding of early commentators

and scholars. Blackstone stated that a law is ex post facto

“when after an action is committed, the legislator then for

the first time declares it to have been a crime, and inflicts

punishment on the person who has committed it.” 1 William

Blackstone, Commentaries on the Laws of England 46

(1765). Wooddeson described what would become Calder’s

first category as laws that “respect the crime, determining

those things to be treason, which by no prior law or adjudi-

cation could be or had been so declared.” 2 R. Wooddeson,

A Systematical View of the Laws of England 631 (1792).

Story described the first category as laws “whereby an act is

declared @ crime, and made punishable as such, when it was

not a crime, when done.” 3 Joseph Story, Commentaries on

the Constitution of the United States § 1339, at 212 (1833).

And Kent similarly described the first category as including

every law “that made an act done before the passing of the

law, and which was innocent when done, criminal.” 1 James

Kent, Commentaries on American Law 408 (3d ed. 1836)

(Lecture 19).

The Founding-era state constitutions expressed their ex

post facto prohibitions with similar language. See Carmell,

529 U.S. at 585 n.25. Massachusetts prohibited “[ljaws made

to punish for actions done before the existence of such laws,

and which have not been declared crimes by preceding

laws.” Ibid. Likewise, North Carolina and Maryland pro-

- hibited “retrospective laws, punishing facts committed be-

fore the existence of such laws, and by them only declared

eriminal.” [bid. ,

This Court has also repeatedly described Calder’s first

category as confined to statutes that penalize acts that were

innocent when done. In Beazell v. Ohio, 269 U.S. 167, 169-

170 (1925) (emphasis added), the Court stated that “(ijt is

settled, by decisions of this Court so well known that their

citation may be dispensed with, that any statute which pun-

ishes as a crime an act previously committed, which was in-

nocent when done * * * is prohibited as ex post facto.”

Numerous other decisions describe Calder’s first category in

the same way.' Petitioner offers no reason for the Court to

1 Bg, Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325-326 (1866)

(“By an ex post facto law is meant one which imposes a punishment for an

act which was not punishable at the time it was committed."); Ex parte

Garland, 71 U.S. (4 Wall.) 333, 377 (1866) (A law is ex post facto when it

imposes a punishment for acts “which were not punishable at the time

they were committed.”); Gut v. Minnesota, 76 U.S. (9 Wall.) 35, 38 (1869)

(ex post facto law “imposes a punishment for an act which was not punish-

able at the time it was committed”); Duncan v. Missouri, 152 U.S. 377, 382

(1894) (ex post facto law “imposes a punishment for an act which was not

punishable at the time it was committed”), Hopt v. Utah, 110 U.S. 574, 589

(1884) (law did not “attach criminality to any act previously done, and

which was innocent when done”); Thompson v. Missoun, 171 U.S. 380, 387

(1898) (law did not “make any act involved in (defendant's) offense crimi-

nal that was not criminal at the time he committed the murder of which he

was found guilty”); Mallett v. North Carolina, 181 U.S. 589, 597 (1901)

depart from that established understanding of Calder’s first

category.

3. Petitioner also contends (Br. 14-15) that California’s

new limitations period violates Calder’s first category be-

cause the statute of limitations is a material ingredient of an

offense in California, and this Court stated in Miller v. F'lor-

ida, 482 U.S. 423, 433 (1987) (quoting Hopt v. Utah, 110 U.S.

574, 590 (1884)), that a law is ex post facto when it “change(s]

the ingredients of the offence.” That contention is based on a

misunderstanding of California law and Calder’s first cate-

gory.

As the California Supreme Court has explained, Califor-

nia’s limitations period is not an element of the crime itself.

Frazer, 88 Cal. Rptr. 2d at 328-329 n.22. Instead, it operates

“to insulate from prosecution even those individuals whose

conduct otherwise satisfie[s] all elements of a penal statute,

and who [are] otherwise subject to criminal punishment, at

the time the conduct occurred.” /d. at 327. The status of the

limitations period under California law is reflected in the

burden of proof on that issue. Under California law, “guilt”

must be established beyond a reasonable doubt, while other

issues in a criminal case are resolved under a preponderance

of the evidence standard. People v. McGill, 51 P.2d 433, 435

(Cal. Dist. Ct. App. 1935). Because the limitations period is

not an element of the defendant’s “guilt” under California

law, that issue is resolved under a preponderance standard.

Ibid. See People v. Zamora, 134 Cal. Rptr. 2d 784, 802 n.27

(1976). The California Supreme Court has held that, while a

timely filed charge is not an element of the crime itself, it is

(law in question “did not make that a criminal act which was innocent

when done”); Collins v. Youngblood, 497 U.S. 37, 43 (1990) (“The Beazell

formulation is faithful to our best knowledge of the original understanding

of the Ez Post Facto Clause.”); id. at 52 (“The Texas statute allowing

reformation of improper verdicts does not punish as a crime an act previ-

ously committed, which was innocent when done.”).

“is an essential element in the final power to pronounce

judgment.” People v. Crosby, 25 Cal. Rtpr. 847, 853 (1962).

But that does not mean that a change in the limitations pe-

riod alters the elements of the offense.

Regardless of the status of a limitations period under Cali-

fornia law, a violation of category one occurs, as discussed

above, only when a statute penalizes conduct that was inno-

cent when the defendant engaged in the conduct. It follows

that a law impermissibly changes “the ingredients of an of-

fense” within the meaning of Calder’s first category only

when it changes the elements of the crime itself. As the

Court explained in Collins, 497 U.S. at 43, ufider Calder’s

first category, “{ljegislatures may not retroactively alter the

definition of crimes.” Only changes in the elements of the:

crime itself can have the prohibited effect of criminalizing

vonduct that was innocent when done. And only changes in

the elements of the crime itself can violate the fair warning

principle that animates Calder’s first category. Changes in

what the prosecution must prove with respect to matters

other than the elements of the crime, such as the applicable

limitations period or the appropriate venue, neither penalize

conduct that was innocent when done nor deprive a defen-

dant of fair warning. See Gut v. Minnesota, 76 U.S. (9 Wall.)

35, 37-38 (1869) (retroactive change in venue does not violate

Ex Post Facto Clause). They therefore fall outside Calder’s

first category.

4. Amici National Association of Criminal Defense Law-

yers, et al. contend (Br. 11) that Calder’s first category,

“{pjroperly understood,” prevents the government from ret-

roactively eliminating the need to prove any fact when that

action is “tantamount to eliminating an element of the of-

fense.” The limitations period is tantamount to an offense

element, Amici argue, because it must be proved to obtain a

conviction. The limitations period, however, is not “tanta-

mount” to an element of the offense within the meaning of

Calder’s first category. An elimination of one of the ele-

ments of the offense penalizes conduct that was innocent

when done; a change in the limitations period does not.

Amici seek support for their theory (Br. 11) in Justice

Chase’s statement that category one extends to laws that

“inflicted punishments, where the party was not, by law, li-

able to any punishment.” IJbid. (quoting Calder, 3 U.S.

(3 Dall.) at 389). In the context of the opinion as a whole,

that statement must be understood to refer to laws that

inflicted punishments, where the party was not, by law,

liable to any punishment when the alleged criminal conduct

occurred. Indeed, immediately following the statement cited

by Amici, Justice Chase gave as an example of the kind of

law to which he was referring the case of the Earl of

Strafford. Calder, 3 U.S. (3 Dall.) at 389 n. (a). As explained

by Wooddeson, in that case, Parliament punished as treason

conduct that was innocent when done. 2 Wooddeson, supra,

at 629-631. Moreover, on the very next page of the opinion,

Justice Chase described the first category as including only

laws that penalize conduct that was innocent when done.

Calder, 3 U.S. (3 Dall.) at 390.

Amici also attempt to draw support for their theory from

Justice Chase’s reference to laws that “save time from the

statute of limitations.” Br. 12 (citing Calder, 3 U.S. (3 Dall.)

at 391). In Amici’s view, that reference shows that Justice

Chase viewed laws that shorten the limitations period as

outside the Ex Post Facto Clause because they are ameliora-

tive. By implication, they argue, Justice Chase necessarily

viewed laws that extend the limitations period as a violation

of the Ex Post Facto Clause.

Amici misread Justice Chase’s reference to laws that save

time from the limitations period. The relevant passage is as

follows:

Every law that is to have an operation before the making

thereof, as to commence at an antecedent time; or to save

time from the statute of limitations; or to excuse acts

which were unlawful and before committed, and the like;

is retrospective. But such laws may be proper or neces-

sary, as the case may be.

Calder, 3 U.S. (3 Dall.) at 391. In that passage, laws that

save time from the statute of limitations most likely refers to

laws that retroactively extend the limitations period, not

laws that shorten it. See Davis v. Ballard, 24 Ky. (1 J.J.

Marsh.) 563, 579 (1829) (interpreting the passage in that

way); Davis v. Minor, 2 Miss. (1 Howard) 183, 191-193 (1835)

(same); see also Stewart v. Kahn, 78 U.S. (11 Wall.) 493, 503-

505 (1870) (characterizing laws reviving time-barred actions

as deducting time from that provided by statute of limita-

tions); Blacks’s Law Dictionary 1063 (1st ed. 1891) (“save”

defined in part to mean “[t]o toll, or suspend the running or

operation of; as to ‘save’ the statute of limitations”). By

stating that such laws “may be proper or necessary, as the

case may be” (Calder, 3 U.S. (3 Dall.) at 391), Justice Chase

was suggesting, if not stating directly, that such laws, while

retrospective, are outside the scope of the ex post facto

prohibition. Davis v. Ballard, 24 Ky. (1 J.J. Marsh.) at 579.

At best, Justice Chase’s reference to laws that save time

from a statute of limitations is somewhat cryptic. What is

clear is that Justice Chase did not say that a law that revived

an expired limitations period would violate the ex post facto

prohibition, and any such statement would have been

inconsistent with his definition of ex post facto laws.

Noting that Justice Chase relied on Wooddeson in creat-

inz his four categories, Amici also seek to draw support for

their theory from Wooddeson. Specifically, they rely on

Wooddeson’s description of acts of Parliament that inflicted

the pains of attainder on those who had levied war against

the King, and had fled from justice, provided they did not

surrender by a certain future date. Br. 12-13 (citing 2

Wooddeson, supra, at 625-626). Amici assert that Wood-

eson’s treatment of the surrender date as an innovation in

the offense shows that category one is not limited to changes

in the elements of the crime.

The example cited by Amici, however, was not an ex post

facto law. The addition of a surrender date was an ameliora-

tive change in the prohibition against treason. Moreover, be-

cause the surrender date was a future one, the change was

prospective rather than retroactive. Consistent with that

understanding, Wooddeson did not describe the example as

an ex post facto law. And while Justice Chase recited all of

Wooddeson’s other examples of bills of attainder as exam-

ples of ex post facto laws (Carmell, 529 U.S. at 522-524), he

did not use that one. In any event, in the example cited by

Amici, the failure to surrender was an element of the crime.

As Wooddeson described it, the failure to surrender “con-

summated” a “new treason.” 2 Wooddeson, supra, at 625-

626. That example therefore cannot show that category one

includes something other than changes in the elements of the

crime.

5. While petitioner and his Amici purport to find support

for their theories in Calder’s first category, in reality, they

seek to create an entirely new category of ex post facto laws.

Indeed, Amici admit as much, stating that Calder’s catego-

ries are merely “illystrative.” Br. 11. But in Collins, the

Court emphatically reiected the contention that the Ex Post

Facto Clause extends beyond Calder’s four categories, ex-

plaining that “the prohibition which may not be evaded is the

one defined by the Calder categories.” 497 U.S. at 46. In

Carmell, the Court reaffirmed that “it [is] a mistake to stray

beyond Calder’s four categories.” 529 U.S. at 539.

B. A Law That Permits The Prosecution Of An Of-

fense For Which the Statute Of Limitations Had

Previously Expired Does Not Remove A Defense

Within The Meaning Of Calder’s First Category

There is also no merit to petitioner’s contention (Br. 20-25)

that the State’s new limitations period for sexual offenses

violates Calder’s first category because it eliminates a de-

fense to prosecution. Under Collins, the elimination of a de-

fense can violate Calder’s first category only when the de-

fense is “related to the definition of the crime,” or to “the

matters which might be pleaded as an excuse or justification

for the conduct” that has been charged as a crime. 497 U.S.

at 50. Coliins’s formulation harmonizes the Court’s previous

statements that alterations in a defense can violate the Ex

Post Facto Clause, see Beazell v. Ohio, 269 U.S. 167, 170

(1925), with the esteblished understanding that Calder’s first

category encompasses only changes that penalize conduct

that was innocent when done.

The Court’s approval of United States v. Hall, 2€ F. Cas.

84 (C.C. D.Pa. 1809) (No. 15,285), and its overruling of Kring

v. Missouri, 107 U.S. 221 (1883), illustrates the distinction

between defenses that implicate the prohibition against ex

post facto laws and those that do not. In Hall, the United

States charged a vessel owner with failure to deliver cargo.

The owner pleaded as a defense that a severe storm had

disabled the vessel at sea, forcing him to land in Puerto Rico,

where the government forced him to sell the cargo. 26 F.

Cas. at 84. Justice Washington stated that at the time of the

owner’s conduct, an unavoidable accident was an affirmative

defence to a charge of failure to deliver cargo. He further

stated that, if applied in the vessel owner’s case, a change in

the defense requiring proof that the cargo was lost at sea

would be an invalid ex post facto law. Id. at 86. In Collins,

the Court stated that Justice Washington had reached the

correct conclusion. The Court explained that “{a] law that

abolishes an affirmative defense of justification or excuse

contravenes Art. I, § 10, because it expands the scope of a

criminal prohibition after the act is done.” 497 U.S. at 49.

In Kring, the defendant pleaded guilty to second degree

murder and obtained a reversal of his conviction on appeal.

On remand, Kring was convicted of first degree murder and

sentenced to death. 107 U.S. at 222. At the time of Kring’s

criminal conduct, a plea of guilty to second degree murder

constituted an acquittal of first degree murder even if the

defendant successfully challenged his conviction for second

degree murder on appeal. By the time Kring pleaded guilty

to second degree murder, however, the law had changed, and

the plea did not constitute an acquittal to first degree mur-

der if the defendant subsequently obtained a reversal of his

conviction for second degree murder on appeal. In Kring,

the Court held that the change impermissibly deprived the

defendant of a defense he had possessed to first degree mur-

der at the time he engaged in his criminal conduct. Jd. at

228-229. In Collins, the Court overruled Kring, explaining

that “Missouri had not changed any of the elements of the

crime of murder, or the matters which might be pleaded as

an excuse or justification for the conduct underlying such a

charge.” 497 U.S. at 50.

Under Collins, as illuminated by its approval of Hall and

disapproval of Kring, a statute of limitations defense is not

the kind of defense that implicates the prohibition against ex

post facto laws. Like the defense at issue in Kring, a statute

of limitations defense does not relate to an element of the

crime itself; it does not operate as an excuse or justification

for alleged criminal conduct; and it does not show that the

charged conduct was innocent when done.

C. A Law That Permits The Prosecution Of An Of-

fense For Which The Statute Of Limitations Had

Previously Expired Does Not Violate Any Of The

Other Calder Categories

1. A law that permits the prosecution of an offense for

which the statute of limitations has expired also does not fall

within either category two or three. Such a law does not

“aggravate[} a crime, or make[] it greater than it was, when

committed,” and it does not “change[] the punishment, and

inflict{] a greater punishment, than the law annexed to the

crime, when committed.” Calder, 3 U.S. (3 Dall.) at 390. As

the Court explained in Carmell, categories two and three

apply only to statutes that affect punishment. 529 U.S. at

524. Category two encompasses statutes that create a new

form of punishment, while category three encompasses stat-

utes that increase the severity of the punishment. /d. at 523

& n.12. A law that permits the prosecution of an offense for

which the statute of limitations had previously expired does

neither of those things. Instead, it permits the prosecutor to

seek the same forms and amount of punishment that the law

authorized at the time the offense was committed.

Petitioner contends (Br. 26-27) that California’s law vio-

lates category two because it increases the limitations pe-

riod, the class of persons subject to prosecution, and the ju-

risdiction of the courts. None of those asserted effects, how-

ever, introduces any new form of punishment. They there-

fore provide no basis for a finding that California’s law vio-

lates category two.

Petitioner similarly errs in contending (Br. 29-30) that the

new limitations period violates category three because he

was subject to no punishment before the statute was en-

acted, while he is subject to at least some punishment now.

As stated by Justice Chase, the third category is triggered

only when a statute imposes more punishment “than the law

annexed to the crime, when committed.” Calder, 3 US. (3

Dall.) at 390 (emphasis added). Consistent with Justice

Chase’s formulation, the Court has repeatedly held that the

amount of punishment raises ex post facto concerns only

when it is increased “beyond what was prescribed when the

crime was consummated.” Miller v. Florida, 482 U.S. 423,

430 (1987) (emphasis added).?

2. A law that permits the prosecution of an offense for

which the statute of limitations had previously expired also

does not “alter[{] the legal rules of evidence, and receive[]

less, or different testimony, than the law required at the

time of the commission of the offense, in order to convict the

offender.” Calder, 3 U.S. (3 Dall.) at 390. In Carmell, the

Court explained that Calder’s fourth category encompasses

rules of evidence that reduce either “the burden of proof” or

“the quantum of evidence required to convict an offender,”

and thereby “subvert({] the presumption of innocence.” 529

US. at 532.

The Court has invalidated two laws as category four viola-

tions—a law that retroactively required a class of persons to

prove that they did not commit an offense, Cummings, 71

U.S. (4 Wall.) at 327-328, and a statute that retroactively

eliminated the rule that the testimony of the victim of a

sexual offense is insufficient by itself to prove that crime.

2 Garner v. Jones, 529 U.S. 244, 249-250 (2000) (“One function of the

Ex Post Facto Clause is to bar enactments which, by retroactive opera-

tion, increase the punishment for a crime after its cor..mission.”), Lynce v.

Mathis, 519 U.S. 433, 441 (1997) (“The bulk of our ex post facto jurispru-

dence has involved claims that a law has inflicted ‘a greater punishment,

than the law annexed to the crime, when committed.’”); Weaver v. Gra-

ham, 450 U.S. 24, 28 (1981) (“The ex post facto prohibition forbids the

Congress and the States to enact any law ‘which imposes a punishment for

an act which was not punishable at the time it was committed; or imposes

additional punishment to that then prescribed.’”); Beazell, 269 U.S. at 169

(A law violates the Ex Post Facto Clause when it “makes more burden-

some the punishment for a crime, after its commission.”).

Carmell, 529 U.S. at 530. The Court has also described as a

category four violation a law that retroactively eliminated

the requirement that the testimony of two witnesses was

necessary to obtain a conviction for treason Id. at 526. In

contrast, the Court has held that category four did not bar

retroactive application of a law permitting felons to testify,

Hopt v. Utah, 110 U.S. 574, 589-590 (1884), or a law allowing

the introduction into evidence of expert handwriting testi-

mony, Thompson v. Missouri, 171 U.S. 380 (1898).

Under those decisions, a law that does nothing more than

permit the prosecution of an offense for which the statute of

limitations had previously expired does not fall within cate-

gory four. Indeed, such a law is not a “rule[{] of evidence” at

all. Calder, 3 U.S. (3 Dall.) at 390. Instead, it addresses the

time within which it is permissible to commence a prosecu-

tion. The forms of evidence that may be introduced to prove

that a prosecution has been timely commenced and the st4n-

dard for measuring whether such evidence is sufficient are

left to prior law.

Statutes that do nothing more than establish a new limita-

tions period also do not implicate category four because they

do not relate to the evidence that is necessary to establish

the elements of the crime itself. Only evidentiary rules that

reduce the burden of proving the crime itself “subvert({] the

presumption of innocence.” Carmell, 529 U.S. at 532. Just

as category one violations are limited to changes in the defi-

nition of the crime itself, category four violations are limited

to evidentiary rules that reduce the burden of establishing

those elements. Both prohibitions work together to ensure

that a statute does not penalize conduct that was innocent

when done. /bid. (explaining the interrelationship between

changes in the elements of the offense and reducing the

quantum of eviden to convict).

In one respect, California’s new law does more than es-

tablish a new limitations period. It conditions application of

the new period on proof that the crime involved substantial

sexual conduct, and independent evidence that clearly and

convincingly corroborates the victim’s allegations. Because

that component of California’s law actually increases the

quantum of evidence that the government must establish,

and because such proof is a precondition to application of the

new limitations period, rather than an element of the crime

itself, it does not implicate category four.

D. Additional Precedent Supports The Constitution-

ality Of Laws That Permit The Prosecution Of Of-

fenses For Which The Statute Of Limitations Had

Previously Expired

1. Stewart v. Kahn, 78 U.S. (11 Wall.) 493 (1870), further

supports the conclusion that a law that permits prosecution

of an offense for which the statute of limitations had previ-

ously expired does not violate the prohibition against ex post

facto laws. Stewart involved a challenge to federal legisla-

tion that tolled the statute of limitations applicable in both

civil and criminal cases for the period during which exigen-

cies of the Civil War prevented service of process. The

Court rejected the claim that the iaw exceeded Congress’s

power as applied to state law actions in state courts. Before

doing so, however, the Court first concluded that the

statute’s tolling provision applied retroactively in both civil

and criminal cases even “where the action was barred at the

time of its passage,” and that “(t]here is no prohibition in the

Constitution against retrospective legislation of this charac-

ter.” Id. at 504.

Stewart involved a civil suit, so its conclusion with respect

to criminal cases is dicta. But the Court’s statement that

there is no constitutional barrier to a law that permits the

prosecution of an offense for which the statute of limitations

had previously expired suggests that the conclusion was not

viewed as controversial at the time.

2. The courts of appeals have also uniformly rejected ex

post facto challenges to federal legislation extending the

limitation period for crimes committed before their enact-

ment where a prosecution was not already time-barred.’

One of the early decisions explained that such a statute does

not violate the prohibition against ex post facto laws because

it does not “render a previously innocent act criminal,” “ag-

gravate or increase the punishment for the crime{],” or “al-

ter the rules of evidence.” Clements v. United States, 266

F.2d 397, 399 (9th Cir.), cert. denied, 359 U.S. 985 (1959). A

more recent decision similarly explained that such a statute

does not “criminalize[] previously innocent conduct,” “en-

hance[] the punishment for an existing crime,” or eliminate a

defense “related to the definition of the crime, or to the mat-

ters which a defendant might plead as justification or ex-

euse.”. United States v. Brechtel, 997 F.2d 1108, 1H3 (5th

Cir. 1993). The analysis in those decisions is equally ap-

plicable to statutes that permit the prosecution of offenses

for which the statute of limitations had previously expired.

3 United States v. De La Mata, 266 F.3d 1275 (11th Cir. 2001) (in-

creasing limitations period from five to seven years for financial institu-

tion offenses); United States v. Grimes, 142 F.3d 1342 (11th Cir. 1998) (in-

creasing limitations period from five to seven years for crimes involving

explosives), cert. denied, 525 U.S. 1088 (1999); United States v. Brechtel,

997 F.2d 1108 (5th Cir. 1993) (increasing limitations period from five to ten

years for participation in unlawful savings and loans transaction); U’niled

States v. Taliaferro, 979 F.2d 1399 (10th Cir. 1992) (increasing limitations

period from five to ten for false statements to insured banks); United

States v. Knipp, 963 F.2d 839 (6th Cir. 1992) (increasing limitations period

from five tc ten years for scheme to defraud federally insured institution);

Clements v. United States, 266 F 2d 397 (9th Cir.) (increasing limitations

period from three to five years for transportation of females for purposes

of prostitution), cert. denied, 359 U.S. 985 (1959); Falter v. United States,

23 F.2d 420 (2d Cir.) (increasing limitations period from three to six years

for conspiracy to defraud the United States), cert. denied, 277 U.S. 590

(1928).

EE OO EO _EOEOO—eEOo

3. In Falter v. United States, 23 F.2d 420 (2d Cir.), cert.

denied, 277 U.S. 590 (1928), the court, in an opinion by Judge

Learned Hand, held that a statute that extended the limita-

tions period for the prosecution of an offense committed be-

fore the statute’s enactment did not violate the prohibition

against ex post facto laws where the effect of the statute was

to give the prosecution “a longer lease of life,” rather than

“to revive a prosecution already dead.” /d. at 425. The court

went on to suggest that the result might well be different if

the earlier limitations period had expir 2d before the stat-

ute’s enactment. /d. at 425-426. The court explained that, in

its view, the question under the Ex Post Facto Clause “turns

upon how much violence is done to our instinctive feelings of

justice and fair play.” Jd. at 426. That analysis is unsound.

First, as this Court has recognized, “{rjetroactive provi-

sions often serve entirely benign and legitimate purposes,”

such as “to correct mistakes,” “to prevent circumvention of a

new statute in the interval immediately preceding its pas-

sage,” or “to give comprehensive effect to a new law [the

legislature] considers salutary.” Landgraf v. USI Films

Prods., 511 U.S. 244, 267-268 (1994). Those legitimate rea-

sons can also support extending the period within which to

commence a prosecution on which the statute of limitations

had previously expired. :

For example, the statute discussed in Stewart permitted

the prosecution of criminal offenders who would have other-

wise escaped prosecution solely because of the exigencies of

war. A bill pending in Congress that would toll the limita-

tions period retroactively where a perpetrator is identified

through DNA evidence ensures that persons demonstrably

guilty of offenses will not escape prosecution simply because

such evidence was not previously available. See p. 2, supra.

And California’s law ensures that sex offenders do not es-

to report the offenses while under their influence or control.

“Sinesag

As those examples demonstrate, a law that permits the

prosecution of an offense for which the statute of limitations

had previously expired can be entirely consistent with “jus-

tice and fair play.” Falter, 23 F.2d at 426.

More fundamentally, under this Court’s decisions, a viola-

tion of the prohibition against ex post facto laws does not de-

pend on “instinctive feelings of justice and fair play.” Falter,

23 F.2d at 426. Instead, “the prohibition which may not be

evaded is the one defined by the Calder categories.”

Collins, 497 U.S. at 46. Because a law that permits the

prosecution of an offense for which the statute of limitations

had previously expired does not violate any of the Calder

categories, it does not violate the Ex Post Facto Clause.

Il. A LAW THAT PERMITS THE PROSECUTION OF

AN OFFENSE FOR WHICH THE STATUTE OF

LIMITATIONS HAD PREVIOUSLY EXPIRED

DOES NOT DENY DUE PROCESS OF LAW

A. The Conetitutionality Of Retroactive Criminal

Laws Is Governed By The Ex Post Facto Clause,

Not The Due Process Clause

There is also no merit to petitioner’s contention (Br. 31-50)

that extending an expired limitations period violates the Due

Process Clause. Under this Court’s decisions, if a constitu-

tional claim is covered by a specific constitutional provision, -

that claim must be analyzed under the standard provided by

that provision, not under the Due Process Clause. For ex-

ample, in Graham v. Connor, 490 U.S. 386, 395 (1989), the

Court held that the Fourth Amendment, rather than the

Due Process Clause, supplies the standards for deciding

whether a seizure of a free citizen is constitutional. The

Court reasoned that, “[blecause the Fourth Amendment

provides an explicit textual source of constitutional protec-

tion against this sort of physically intrusive governmental

conduct, that Amendment, not the more generalized notion

of ‘substantive due process,’ must be the guide for analyzing

these claims.” /bid.

Similarly, in Sattazahn v. Pennsylvania, 123 S. Ct. 732

(2003), the Court held that where a jury deadlocked at the

defendant's capital sentencing hearing, a judge imposed a

life sentence without making a finding concerning the pres-

ence or absence of aggravating factors, and the defendant

succeeded in having his conviction set aside on appeal, the

Double Jeopardy Clause did not bar the imposition of a capi-

tal sentence after a retrial. The Court then summarily re-

jected the defendant’s due process claim, holding that “[wje

decline petitioner’s invitation to hold that the Due Process

Clause provides greater double-jeopardy protection than

does the Double Jeopardy Clause.” Jd. at 742.

The analysis used in Graham and Sattazahn is also appli-

cable here. The Constitution contains an explicit textual re-

straint on a legisiature’s enactment of ex post facto laws.

That specific constitutional prohibition, rather than general-

ized notions of due process, supplies the standard for evalu-

ating whether a retroactive criminal statute is constitutional.

The Court should “decline petitioner’s invitation to hold that

the Due Process Clause provides greater [ex post facto] pro-

tection than does the [Ex Post Facto Clause].” Sattazahn,

123 S. Ct. at 742.

B. The Benefit Of An Expired Limitations Period Is

Not A Fundamental Right

Even if a separate due process analysis were warranted, a

law that permits prosecution of an offense for which the

statute of limitations had previously expired does not impli-

cate any right that is fundamental for due process purposes.

In Chase Securities Corp v. Donaldson, 325 U.S. 304, 314

(1945), the Court unanimously held that “the shelter pro-

vided by the expiration of a limitations period has never

been regarded as what is now called a ‘fundamental’ right or

what used to be called a ‘natural’ right of the individual.”

The Court further held that while a defendant “may, of

course, have the protection of the policy while it exists,

* * * the history of pleas of limitation shows them to be

good only by legislative grace and to be subject to a rela-

tively large degree of legislative control.” Jbid. In reaching

that conclusion, the Court emphasized that “(s)tatutes of

limitations find their justification in necessity and conven-

ience rather than in logic,” and represent “expedients, rather

than principles.” [bid. ‘Fhe Court also emphasized “({t)his is

not a case where appellant’s conduct would have been differ-

ent if the present rule had been known and the change

foreseen. It does not say, and could hardly say, that it sold

unregistered stock depending on a statute of limitation for

shelter from liability.” /d. at 316. The Court accordingly

reaffirmed its holding in Campbell v. Holt, 115 U.S. 620, 627-

628 (1885), that reviving an expired civil cause of action does

not violate Due Process. See also Plaut v. Spendthrift

Farm, Inc., 514 U.S. 211, 229 (1995) (reaffirming that

statutes of limitations “can be extended, without violating

the Due Process Clause, after the cause of action arose and

even after the statute itself has expired”); Electrical

Workers v. Robbins & Meyers, 429 U.S. 229, 243 (1976) (up-

holding constitutionality of an Act of Congress that revived a

cause of action that was time-barred before its enactment).

Chase and Campbell involved civil actions, but the Court’s

analysis applies equally to criminal cases. Criminal statutes

of limitations, like civil statutes of limitations, reflect prag-

matic public policy judgments, rather than personal entitle-

ments. Indeed, the Court has concluded that the policies

that underlie criminal statutes of limitations largely track

the policies that underlie civil limitations periods. United

States v. Marion, 404 U.S. 307, 322-323 & n. 14 (1971) (noting

that statutes of limitations are designed to promote societal

repose, to guard against the dangers of a trial where mate-

‘

rial evidence has been lost or has become stale, and to en-

courage the filing of actions promptly). Equally important,

just as the defendants in Chase who where charged with se-

curities fraud could not legitimately claim that they did so in

reliance on the limitations period, here, those who commit

crimes cannot legitimately claim that did so in reliance on

the existing limitations period. Thus, like a civil defendant, a

criminal defendant does not have a fundamental right to the

benefit of an expired limitations period.

When a retroactive statute does not impinge on a funda-

mental right, the relevant inquiry under the Due Process

Clause is whether “the retroactive application of the legisla-

tion is itself justified by a rational legislative purpose.”

United States v. Carlton, 512 U.S. 26, 31 (1994). California’s

statute satisfies that standard. California extended its

limitations period for sexual offenses prospectively based on

evidence that minors who are victims of sexual offenses of-

ten fail to report them in time to permit timely prosecution

because they are under the influence or control of the of-

fenders. Frazer, 88 Cal. Rptr. 2d at 316-317. It was entirely

rational for California to conclude that the same rationale

justified extending its new limitations period to crimes

committed before the statute’s enactment.

C. Petitioner's Remaining Contentions Are Unper-

suasive

Petitioner’s remaining contentions are all without merit.

Petitioner seeks to analogize his claim (Pet. 36) to one where

the government fails to honor a plea agreement. But a stat-

ute of limitations bears no resemblance to a plea agreement.

In a plea agreement, ‘he government promises to do some-

thing to assist the defesdamt, and the defendant, in turns,

agrees to do something of value to the government—plead

guilty. In contrast, a statute of limitations does not contain

any promise from the government, and a person does not

agree to do anything of value for the government in order to

obtain the benefits of the limitations period. Accordingly,

the principle that the government is obliged to honor its plea

agreements, see Santobello v. New York, 404 U.S. 257, 262-

263 (1971), has no application here.

Petitioner’s reliance (Br. 47) on Raley vy. Ohio, 360 US.

423, 437-438 (1959), is also misplaced. There, the govern-

ment assured the defendant that he was not required to an-

swer certain questions, and then prosecuted him for failing

to answer those very questions. The Court held that the

government’s conduct constituted “active misleading” and

“the most indefensible sort of entrapment.” Jd. at 438. In

the present context, there is neither active misleading nor

entrapment. A statute of limitations contains no assurance

that it will not be retroactively modified, and a person who

engages in criminal conduct is not entrapped into doing so by

the existing limitations period.

Finally, petitioner's concern (Pet. 47) that a person may

not preserve information material to a defense after a limita-

tions period has expired does not lead to the conclusion that

extending an expired limitations period violates due process.

The same concerns could be voiced with respect to civil li-

ability, yet the Court's rulings in Campbell and Chase reject

a per se due process rule. Rather, in a criminal case, the

government’s delay in bringing a prosecution implicates the

Due Process Clause only when there is evidence of “actual

prejudice” from the delay. Marion, 404 U.S. at 324. Even

actual prejudice is insufficient »y itself to establish a due

process violation. In addition, a court must consider the

government’s reasons for the delay. United States v. Lo-

vasco, 431 U.S. 78%, 790 (1977). Here, petitioner has failed to

assert, much less show, that the State’s delay in filing

CONCLUSION

The judgment of the Court of Appeal of California

should be affirmed.

Respectfully submitted.

THEODORE B. OLSON

Solicitor General

MICHAEL CHERTOFF

Assistant Attorney General

MICHAEL R. DREEBEN

Deputy Solicitor General

IRVING L. GORNSTEIN

Assistant to the Solicitor

General

JOHN F. DE PUE

Altorney

FEBRUARY 2003

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.