United States v. Nader

• Decision Date: 26 November 2019
• Docket Number: 1:19-cr-201 (LMB)
• Citation: 425 F.Supp.3d 619
• Court: U.S. District Court — Eastern District of Virginia
• Parties: UNITED STATES of America, v. George Aref NADER, Defendant.

425 F.Supp.3d 619

UNITED STATES of America,

v.George Aref NADER, Defendant.

1:19-cr-201 (LMB)

United States District Court, E.D. Virginia, Alexandria Division.

Signed November 26, 2019

Jay V. Prabhu, Laura Fong, US Attorney's Office, Alexandria, VA, for United States of America.

Timothy McCarten, Clayton Davidson LaForge, Jonathan Chun-Wei Su, Savannah Kent Burgoyne, Latham & Watkins LLP, Emily Anne Voshell, Jonathan Stuart Jeffress, KaiserDillon PLLC, Washington, DC, for Defendant.

MEMORANDUM OPINION

Leonie M. Brinkema, United States District Judge

Before the Court is defendant George Nader's ("defendant" or "Nader") Motion to Dismiss Count Three of the Indictment, which alleges that defendant transported a minor with the intent to engage in criminal sexual activity, in violation of 18 U.S.C. § 2423(a). Defendant moves for the dismissal of Count III on the ground that it is time-barred pursuant to 18 U.S.C. § 3283 (1994). For the reasons that follow, defendant's motion will be denied.

I. BACKGROUND

A. Factual Background

On July 3, 2019, a federal grand jury returned a three-count indictment charging defendant with one count of transportation of visual depictions of minors, in violation of 18 U.S.C. § 2252(a)(1) (Count I), one count of importation or transportation of obscene matters, in violation of 18 U.S.C. § 1462 (Count II), and one count of transportation of a minor with intent to engage in criminal sexual activity, in violation of 18 U.S.C. § 2423(a) (Count III).¹ [Dkt 49, at 1–3]. Specifically, Count III alleges that "[i]n or about February 2000, [defendant] knowingly transported a 14-year old boy ... from Europe to Washington-Dulles International Airport... and engaged in sexual acts with [him]... [at] [defendant's] residence in Washington, D.C." Id. at 3. The applicable statute of limitations at that time was 18 U.S.C. § 3283 (1994), which stated: "No statute of limitations that would otherwise preclude prosecution for an offense involving the sexual or physical abuse of a child under the age of 18 years shall preclude such prosecution before the child reaches the age of 25 years." It is undisputed that the alleged victim reached the age of 25 sometime in 2010 or 2011, and is still alive today.

B. Statutory Background

Over the last 30 years, several statutes of limitations, including multiple iterations of a single statute of limitations, have governed the timeliness of prosecutions for child sexual abuse offenses. Before 1990, the general, five-year statute of limitations for non-capital offenses applied to such offenses. See 18 U.S.C. § 3282.² In 1990, Congress enacted the Victims of Child Abuse Act, which included a specific statute of limitations for child abuse offenses under which a prosecution could be brought until the victim became 25 years old. See 18 U.S.C. § 3509(k).³ In 1994, section 3509(k) was recodified without change as 18 U.S.C. § 3283. See 18 U.S.C. § 3283 (1994). This was the statute of limitations in effect at the time defendant allegedly committed the offense charged in Count III.

In 2003, Congress enacted the Prosecutorial Remedies and Tools Against Exploitation of Children Today Act, which amended § 3283 and extended the time in which a prosecution could be brought to within the life of the victim. See 18 U.S.C. § 3283 (2003).⁴ In January 2006, Congress enacted the Violence Against Women and Department of Justice Reauthorization Act, which again amended § 3283 and extended the time in which a prosecution could be brought to within the life of the victim or ten years after the offense, whichever was longer. See 18 U.S.C. § 3283.⁵ Finally, in July 2006, Congress enacted the Adam Walsh Child Protection and Safety Act, which eliminated any time limit for prosecuting certain offenses involving minor victims. See 18 U.S.C. § 3299.⁶ One such offense is the transportation of a minor with intent to engage in criminal sexual activity, in violation of 18 U.S.C. § 2423(a), which is the statute that Count III alleges defendant violated. See id.

II. DISCUSSION

A. Standard of Review

"A motion to dismiss the indictment ‘tests whether the indictment sufficiently charges the offense set forth against the defendant.’ " United States v. Habteyes, 356 F. Supp. 3d 555, 557-58 (E.D. Va. 2018) (quotation omitted). "In this respect, the standard an indictment must meet is found in [ Federal Rule of Criminal Procedure 7(c)(1) ], which provides that an indictment need only contain ‘a plain, concise, and definite written statement of the essential facts constituting the offense charged.’ " Id. at 558 (quotation omitted). "It is well-settled that under this standard, an indictment is sufficient ‘(1) if it alleges the essential elements of the offense, that is, it fairly informs the accused of what he is to defend; and (2) if the allegations will enable the accused to plead an acquittal or conviction to bar a future prosecution for the same offense.’ " Id. (quotation omitted). When a defendant seeks to dismiss one or multiple counts of a multi-count indictment, "each count is viewed as a separate indictment for purposes of determining its sufficiency." Id. (quotation omitted).

A motion to dismiss that asserts a "failure to comport with the applicable statute of limitations" asserts a failure to allege the essential elements of the offense. United States v. Magalnik, 160 F. Supp. 3d 909, 913 (W.D. Va. 2015). "When considering such a motion, the court must accept all allegations in the indictment as true." Id. at 914. "The statute of limitations is an affirmative defense that must be raised by a defendant;" however, once raised, "[t]he government bears the burden of proving that it began its prosecution within the statute of limitations period." Id. at 915 (quotation omitted) (alteration in original).

B. Analysis

The sole issue in this motion to dismiss is which statute of limitations governs the timeliness of defendant's prosecution under Count III. It is undisputed that if Count III is governed by 18 U.S.C. § 3283 (1994), which was the statute of limitations in effect when the charged conduct occurred in February 2000, then Count III must be dismissed because the victim reached the age of 25 sometime in 2010 or 2011, approximately eight years before the indictment was returned in July 2019. As previously discussed, before the alleged victim reached the age of 25, Congress enacted three statutes that either expanded the statute of limitations set out in 18 U.S.C. § 3283 (1994) or eliminated the applicability of that statute of limitations altogether for the offense charged in Count III. See 18 U.S.C. §§ 3283 (2003), 3283, 3299. It is also undisputed that if the timeliness of defendant's prosecution under Count III is governed by any one of these three statutes, then Count III is not time-barred because, with regard to §§ 3283 (2003) and 3283, the victim is still alive, and with regard to § 3299, the transportation of a minor with intent to engage in criminal sexual activity in violation of 18 U.S.C. § 2423(a) is one of the offenses for which there is no statute of limitations. Accordingly, the question before the Court is whether any one of these three statutes can be applied retroactively to defendant's conduct such that his prosecution under Count III is timely. Whether §§ 3283 (2003), 3283, or 3299 can be applied retroactively are issues of first impression in the Fourth Circuit.

The parties' positions can be summarized as follows. Defendant argues that Congress intended these statutes to apply only prospectively, or at least did not express a contrary intent sufficient to overcome the longstanding presumption against retroactivity. The government argues that the presumption against retroactivity has not been triggered in this case because application of these statutes to defendant's conduct would not have an impermissible retroactive effect. The government has the better argument.

"[T]he principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal appeal." United States ex rel. May v. Purdue Pharma L.P., 737 F.3d 908, 915 (4th Cir. 2013) (quotation omitted) (alteration in original). Accordingly, "[r]etroactivity is not favored in the law." Frontier-Kemper Constructors, Inc. v. Dir., Office of Workers' Comp. Programs, 876 F.3d 683, 688 (4th Cir. 2017) (quotation omitted) (alteration in original). "This maxim is reflected in a presumption against statutory retroactivity that is ‘deeply rooted in our jurisprudence[ ] and embodies a legal doctrine centuries older than our Republic.’ " Gordon v. Pete's Auto Serv. of Denbigh, Inc., 637 F.3d 454, 458 (4th Cir. 2011) (quotation omitted). "When triggered, the presumption against retroactivity instructs courts not to apply a statute to conduct that took place before the statute went into effect" unless "there is ‘clear congressional intent favoring such a result.’ " Id. (quotation omitted).

"The framework for determining whether a statute applies retrospectively to pre-enactment conduct is set forth in Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994)." Cruz v. Maypa, 773 F.3d 138, 144 (4th Cir. 2014). " Landgraf requires a three-step analysis." Id. "First, [the court] must ask ‘whether Congress has expressly prescribed the statute's proper reach.’ " Baldwin v. City of Greensboro, 714 F.3d 828, 836 (4th Cir. 2013) (quotation omitted). If so, " ‘there is no need to resort to judicial default rules,’ and hence, the presumption against retroactivity does not apply;" rather, the court must heed Congress's express command, and the inquiry ends at step one. Ward v. Dixie Nat. Life Ins. Co., 595 F.3d 164, 172 (4th Cir. 2010) (quotation omitted). "Second, if ‘the statute contains no such express command,’ " then the court must ask "whether the new statute would have [a] retroactive effect as applied to the particular case" before it. Baldwin, 714 F.3d...