EFTA00233329

Case 9:10-cv-80309-WJZ Document 1 
Entered an FLSD Docket 03/09/2010 Page 19 of 19 
UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF FLORIDA 
WEST PALM BEACH DIVISION 
ATTACHMENT TO CIVIL COVER SHEET 
FOR: Jane Doe 103 
Jeffrey Epstein 
VI. 
RELATED PENDING CASES 
08-80119 - KAM 
08-80232 - KAM 
08-80380 - KAM 
08-80381 - KAM 
08-80811 - KAM 
08-80893 - KAM 
08-80993 - KAM 
08-80994 - KAM 
09-80469 - KAM 
09-80802 - KAM 
09-81092 - KAM 
EFTA00233489

UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF FLORIDA 
CASE NO. 10-80309-CIV-
JANE DOE No. 103, 
Plaintiff, 
vs. 
JEFFERY EPSTEIN, 
Defendant. 
DEFENDANT EPSTEIN'S MOTION TO DISMISS, & FOR MORE 
DEFINITE STATEMENT & STRIKE DIRECTED TO PLAINTIFF 
JANE DOE NO. 103'S COMPLAINT 'dated 2/23/20101 
Defendant, JEFFREY EPSTEIN, ("EPSTEIN"), by and through his undersigned 
counsel, moves to dismiss Counts One through Six of Plaintiff JANE DOE 103's 
Complaint for failure to state a cause of action, as specified herein. Rule I 2(b)(6), 
Fed.R.Civ.P. (2009); Local Gen. Rule 7.1 (S.D. Fla. 2009). Defendant further moves for 
more definite statement and to strike. Rule I 2(e) and (0, In support of his motion, 
Defendant states: 
The Complaint attempts to allege 6 counts, all of which arc purportedly brought 
pursuant to 18 U.S.C. §2255 — Civil Remedies for Personal Injuries. Dismissal is 
required on the following grounds: (I) 18 U.S.C.A. §2255 allows for a single recovery of 
"actual damages." 
(A.) Statutory Considerations: the statute does not allow for the 
Plaintiff to allege multiple counts, six in this case, or multiple predicate act violations or 
incidents, in an effort to multiply or seek duplicate recoveries of her "actual damages" 
EFTA00233490

based on the number of predicate act violations or incidents. The statutory minimum is 
just that — a minimum; nothing prevents a plaintiff from proving and recovering "actual 
damages" in excess of the minimum amount. (B.) Constitutional Considerations: in 
the alternative, constitutional principles require that the statute be interpreted as allowing 
for a single recovery of one's damages. Thus, to the extent Plaintiff is seeking to 
improperly multiply or seek duplicate recoveries of her actual damages, the action is 
required to be dismissed. (2) The statute in effect during the time of the alleged conduct 
applies — the version in effect from 1999 to July 26, 2006, not the statute as amended in 
2006, effective July 27, 2006. To the extent Plaintiff is attempting to rely on the 
amended version of the statute, such reliance is improper and also requires dismissal of 
the entire action. (3) Count VI is also subject to dismissal because the predicate act relied 
upon by Plaintiff did not come into effect until July 27, 2006, well after the conduct 
alleged by Plaintiff occurred. 
Supporting Memorandum of Law 
Principles of Statutory Interpretation 
It is well settled that in interpreting a statute, the court's inquiry begins with the 
plain and unambiguous language of the statutory text. CBS. Inc.'. Prime Time 24 
Venture 245 F.3d 1217 (I 1th Cir. 2001)• U.S.. Castroneves, 2009 WL 528251, •3 (S.D. 
Fla. 2009), citing Reeves 
Astrue, 526 F.3d 732, 734 (11th Cir. 2008); and Smith I. 
Husband, 376 F.Supp.2d at 610 ("When interpreting a statute, [a court's] inquiry begins 
with the text."). "The Court must first look to the plain meaning of the words, and 
scrutinize the statute's 'language, structure, and purpose.' Id. In addition, in construing 
a statute, a court is to presume that the legislature said what it means and means what it 
said, and not add language or give some absurd or strained interpretation. As stated in 
2 
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CBS Inc. supra at 1228 — "Those who ask courts to give effect to perceived legislative 
intent by interpreting statutory language contrary to its plain and unambiguous meaning 
are in effect asking courts to alter that language, and '[c]ourts have no authority to alter 
statutory language.... We cannot add to the terms of [the] provision what Congress left 
out.' Merritt, 120 F.3d at 1187." See also Dodd 
U.S., 125 S.Ct. 2478 (2005); 73 
A m.J ur.2d Statutes §124. 
Title 18 of the U.S.C. is entitled "Crimes and Criminal Procedure." §2255 is 
contained in "Part I. Crimes, Chap. 110. Sexual Exploitation and Other Abuse of 
Children." I8 U.S.C. §2255 (2002), is entitled Civil remedy for personal injuries, and 
provides: 
(a) Any minor who is a victim of a violation of section 224I(c), 2242, 2243, 2251, 
2251A, 2252, 2252A, 2260, 2421, 2422, or 2423 of this title and who suffers 
personal injury as a result of such violation may sue in any appropriate United 
States District Court and shall recover the actual damages such minor sustains 
and the cost of the suit, including a reasonable attorney's fee. Any minor as 
described in the preceding sentence shall be deemed to have sustained damages 
of no less than $50,000 in value. 
(b) Any action commenced under this section shall be barred unless the complaint 
is filed within six years after the right of action first accrues or in the case of a 
person under a legal disability, not later than three years after the disability. 
See endnote I hereto for statutory text as amended in 2006, effective July 27, 
2006. Prior to the 2006 amendments, the version of the statute quoted above was in 
effect beginning in 1999.1
1 The above quoted version of 18 U.S.C. §2255 was the same beginning in 1999 until 
amended in 2006, effective July 27, 2006. 
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Motion to Dismiss 
(1) The remedy afforded pursuant to 18 U.S.C. 82255 allows for a single 
recovery of "actual damages" by a plaintiff against a defendant. The recovery 
afforded is not on a per violation or per incident or per count basis.2 
(A.) Statutory Considerations. 18 U.S.C.A. §2255 - Civil Remedy for Personal 
Injuries, creates a federal cause of action or "civil remedy" for a minor victim of sexual, 
abuse, molestation and exploitation, and allows for a single recovery of the "actual 
damages" sustained and proven by a "minor who is a victim of a violation" of an 
enumerated predicated act and who suffers personal injury as a result of such violation." 
"18 U.S.C. §2255 gives victims of sexual conduct who are minors a private right of 
action." Martinez 
White, 492 F.Supp.2d 1186, 1188 (N.D. Cal. 2007). 18 U.S.C.A. 
§2255 "merely provides a cause of action for damages in `any appropriate United States 
District Court.'" Id, at 1189. 
Under the plain meaning of the statute, §2255 does not allow for the actual 
damages sustained to be duplicated or multiplied on behalf of a plaintiff against a 
defendant on a "per violation" or "per incident" or "per count" basis. No where in the 
2 In other §2255 actions filed against Defendant, Defendant has previously asserted the 
position that 18 U.S.C. §2255's creates a single cause of action on behalf of a plaintiff 
against a defendant, as opposed to multiple causes of action on a per violation basis or as 
opposed to an allowance of a multiplication of the statutory presumptive minimum 
damages or "actual damages." 
EPSTEIN asserts his position regarding the single 
recovery of damages in order to properly preserve all issues pertaining to the proper 
application of §2255 for appeal. EPSTEIN will fully honor his obligations as set forth 
in the Non-Prosecution Agreement with the United States Attorney's Office; 
principally, as related to the claims made in this case by Jane Doe 103, the 
obligations as set forth in paragraph 8 of that Agreement. In particular, EPSTEIN 
will not contest the allegation that he committed at least one predicate offense as 
alleged by Jane Doe 103, a waiver sufficient to satisfy the 2255 statutory condition 
that Jane Doe 103 was a victim of the commission of one of the enumerated 
predicate violations as required. 
4 
EFTA00233493

statutory text is there any reference to the recovery of damages afforded by this statute as 
being on a "per violation" or "per incident" or "per count" basis. 18 U.S.C. 2255(a) 
creates a civil remedy for "a minor who is a victim of a violation of section 224I(c), 
2242, 2243, 2251, 225IA, 2252, 2252A, 2260, 2421, 2422, or 2423 of this title and who 
suffers personal injury as a result of such violation ... ." The statute speaks in terms of 
the recovery of the "actual damages such minor sustains and the cost of suit, including 
attorney's fees." See 18 U.S.C. §2255(a) (2002). See Smith 
Husband, 428 F.Supp.2d 
432 (E.D. Va. 2006); Smith 
Husband, 376 F.Supp.2d 603 (E.D. Va. 2006); Doe'. 
Liberatore 478 F.Supp.2d 742, 754 (M.D. Pa. 2007); and the recent cases in front of this 
court on Defendant's Motions to Dismiss and For More Definite Statement — Doe No. 2 
Epstein, 2009 WL 383332 (S.D. Fla. Feb. 12, 2009); Doe No. 31. Epstein 2009 WL 
383330 (S.D. Fla. Feb. 12, 2009); Doe No. 41. Epstein, 2009 WL 383286 (S.D. Ha. Feb. 
12, 2009); and Doe No. 5I. Epstein, 2009 WI, 383383 (S.D. Fla. Feb. 12, 2009); see also 
U.S. 
Scheidt, Slip Copy, 2010 WL 144837, fn. 1 (E.D.CaI. Jan. II, 2010)- U.S.'. 
Rena, 2009 WI, 2579103, fn. I (E.D. Cal. Aug. 19, 2009); U.S. 
Ferenci, 2009 WL 
2579102, fn. I (E.D. Cal. Aug. 19, 2009); U.S. 
Monk, 2009 WL 2567831, fn. I (E.D. 
Cal. Aug. 18, 2009). U.S.' Zane, 2009 WL 2567832, fn.l (E.D. Cal. Aug. 18 2009). 
As to the meaning of "actual damages," the Eleventh Circuit in McMillian i t
F.D.I.C., 81 F.3d 1041, 1055 (I I th Cir.1996)3, succinctly explained: 
3 In McMillian the I 1th Circuit was faced with the task of the interpretation of the 
statutory term "actual direct compensatory damages" under FIRREA, 12 U.S.C. 
§I821W(3)(i). In doing so, the Court began with the plain meaning of the phrase. See 
Perrin g United States 444 U.S. 37, 42-43, 100 S.Ct. 311, 314, 62 L.Ed.2d 199 (1979) 
("A fundamental canon of statutory construction is that, unless otherwise defined, words 
will besinterpreted as taking their ordinary, contemporary common meaning."). United 
States I McLymont, 45 F.3d 400, 401 (11th Cir.), cert. denied, 514 U.S. 1077, 115 S.Ct. 
5 
EFTA00233494

... "Compensatory damages" arc defined as those damages that "will 
compensate the injured party for the injury sustained, and nothing more; such 
as will simply make good or replace the loss caused by the wrong or injury." 
Black's Law Dictionary (6th Ed.1991). "Actual damages," roughly 
synonymous with compensatory damages, arc defined as "[r]eal, 
substantial and just damages, or the amount awarded to a complainant 
in compensation for his actual and real loss or injury, as opposed ... to 
'nominal' damages [and' 'punitive' damages." Id. Is Finally, "Idlirect 
damages arc such as follow immediately upon the act done." Id. Thus, 
"actual direct compensatory damages" appear to include those damages, 
flowing directly from the repudiation, which make one whole, as opposed 
to those which go farther by including future contingencies such as lost 
profits and opportunities or damages based on speculation. [Citation 
omitted]. ... 
FN15. According to Corpus Juris Secundum, " 'Compensatory damages' 
and 'actual damages' are synonymous terms ... and include[ 
all 
damages other than punitive or exemplary damages." 25 C.J.S. 
Damages § 2 (1966). 
(Emphasis added). 
See also, Fanin 
U.S. Dept. of Veteran Affairs, 2009 WI. 1677233 (111h Cir. June 
17, 2009), citing Fitzpatrick 
IRS 665 F.2d 327, 331 (11th Cir. 1982), abrogated on 
other grounds by Doe'. Chao, 540 U.S. 614, 124 S.Ct. 1204 (2004\ "Actual damages" 
recoverable under the Privacy Act arc "proven pecuniary losses and not for generalized 
mental injuries, loss of reputation, embarrassment or other non-qualified injuries;" and 
the statutory minimum of $1,000 under the Privacy Act is not available unless the 
plaintiff suffered some amount of "actual damages."). 
Considering the plain meaning of "actual damages" and the purpose of such 
damages is to "make one whole," to allow a duplication or multiplication of the actual 
damages sustained is in direct conflict with the well entrenched legal principle against 
duplicative damages recovery. See generally, E.E.O.C. I. Waffle House, Inc. 534 U.S. 
1723, 131 L.Ed.2d 581 (1995) ("Mhe plain meaning of this statute controls unless the 
language is ambiguous or leads to absurd results."). 
6 
EFTA00233495

279, 297, 122 S.Ct. 754, 766 (2002\"As we have noted, it 'goes without saying that the 
courts can and should preclude double recovery by an individual!"), citing General 
Telephone, 446 U.S., at 333, 100 S.Ct. 1698. 
The purpose of damages recovery where a Plaintiff has suffered personal injury 
as a result of Defendant's misconduct is to make the plaintiff whole, not to enrich the 
plaintiff. See 22 Am.Jur.2d Damages §36, stating the settled legal principle that — 
The law abhors duplicative recoveries, and a plaintiff who is injured by a 
defendant's misconduct is, for the most part, entitled to be made whole, not 
enriched. Hence, for one injury, there should be one recovery, irrespective of 
the availability of multiple remedies and actions. Stated otherwise, a party 
cannot recover the same damages twice, even if recovery is based on 
different theories. 
, a plaintiff who alleges separate causes of action is not permitted to recover 
more than the amount of damages actually suffered. There cannot be a 
double recovery for the same loss, even though different theories of liability 
are alleged in the complaint. ... . 
See also, 22 Am.Jur.2d Damages § 28 — 
The law abhors duplicative recoveries; in other words, a plaintiff who is 
injured by reason of a defendant's behavior is, for the most part, entitled to be 
made whole, not to be enriched. The sole object of compensatory damages is 
to make the injured party whole for losses actually suffered; the plaintiff 
cannot be made more than whole, make a profit, or receive more than one 
recovery for the same harm. Thus, a plaintiff in a civil action for damages 
cannot, in the absence of punitive or statutory treble damages, recover more 
than the loss actually suffered. The plaintiff is not entitled to a windfall, and 
the law will not put him in a better position than he would be in had the 
wrong not been done or the contract not been broken. 
Sec also recent case of U.S. 
Baker, 2009 WL 4572, at *8, (F.D. Tx. Dec. 7, 
2009), wherein the Court was inclined to agree with the defendant's interpretation of 
§2255(a) of allowing for a single recovery of the statutory minimum damages amount as 
opposed to the government's argument that "the minimum amount of damages mandated 
by 18 U.S.C. §2255(a) applies to each of (pornographic) image produced by 
7 
EFTA00233496

[defendant]." The government attempted to argue that restitution should be equal to the 
statutory minimum amount times the 55 photos produced by defendant. In rejecting the 
government's argument, the Court reiterated that the statutory minimum is a floor for 
damages — in other words, a mandated minimum. Nothing prevents a plaintiff from 
proving that he or she suffered damages in a greater amount. 
In attempting to bring six counts pursuant to §2255, Plaintiff's complaint alleges in 
part that "Plaintiff was merely a seventeen year old high school student when she was 
first lured into Defendant's sexually exploitive world in or about January 2004." 
Complaint, ¶17. According to the allegations, Plaintiff "was recruited while at work by a 
co-worker, one of the minor victims Defendant paid to procure underage females." Id. 
The Complaint further alleges, ¶17-26, that Defendant "sexually abused and/or battered 
and/or exploited Plaintiff at least 100 times between January 2004 and May 2005." If 
Plaintiff were 17 in January, 2004, she was at least 18 (the age of majority) in January 
2005, if not sooner .° 
Plaintiff alleges identical damages in each of the six counts. Complaint, ¶¶30, 34, 
38, 43, 48, and 52. See endnote 2 hereto for Complaint allegations? In other words, 
Plaintiff is alleging and seeking recovery of duplicative damages in each of the six 
counts. To the extent Plaintiff is seeking to duplicate her "actual damages" on a per 
incident or per violation or per count basis, Plaintiff's action is required to be dismissed 
for failure to state a cause of action. 
4 Defendant is moving for more definite statement requiring Plaintiff to specifically state 
her date of birth because her age and when she reached the age of majority may impact 
her ability to even pursue a §2255 claim. 
8 
EFTA00233497

Had Congress wanted to write in a multiplier of actual damages recoverable it 
could have easily done so. For an example of a statute wherein the legislature included 
the language "for each violation" in assessing a "civil penalty," see 18 U.S.C. §216, 
entitled "Penalties and injunctions," of Chapter 11 — "Bribery, Graft, and Conflict of 
Interests," also contained in Title 18 — "Crimes and Criminal Procedure." Subsection (b) 
of §216 gives the United States Attorney General the power to bring a "civil action ... 
against any person who engages in conduct constituting an offense under" specified 
sections of the bribery, graft, and conflicts of interest statutes. The statute further 
provides in relevant part that "upon proof of such conduct by a preponderance of the 
evidence, such person shall be subject to a civil penalty of not more than $50,000 for 
each violation or the amount of compensation which the person received or offered for 
the prohibited conduct, which ever amount is greater." As noted, 18 U.S.C. §2255 does 
not include such language. 
B. 
Constitutional Considerations.5 
As set forth above, it is Defendant's 
position that the text of 18 U.S.C. §2255 does not allow a Plaintiff to pursue the recovery 
of actual damages or the minimum afforded under the statute on a "per violation" or "per 
incident" basis by attempting to allege multiple counts thereunder. In the alternative, if 
one were to assume that the language of §2255 were vague or ambiguous, under the 
constitutional based protections of due process, judicial restraint, and the rule of lenity 
applied in construing a statute, Defendant's position as to the meaning of the statute 
would prevail. 
See United States'. Santos 128 S.Ct. 2020, 2025 (2008). 
As 
summarized by the United States Supreme Court in Santos supra, at 2025: 
3 
See argument in sections (2) and (3) that follow which represent the predicate for the rule of 
lenity issue discussed in B. 
9 
EFTA00233498

... The rule of lenity requires ambiguous criminal laws to be interpreted in 
I
favor of the defendants subjected to them. See United States 
Gradwell, 243 
U.S. 476, 485, 37 S.Ct. 407, 61 L.Ed. 857 (1917); McBoyle . United States, 
283 U.S. 25, 27, 51 S.Ct. 340, 75 L.Ed. 816 (1931); United States'. Bass, 
404 U.S. 336, 347-349, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971). This venerable 
rule not only vindicates the fundamental principle that no citizen should be 
held accountable for a violation of a statute whose commands are uncertain, 
or subjected to punishment that is not clearly prescribed. It also places the 
weight of inertia upon the party that can best induce Congress to speak more 
clearly and keeps courts from making criminal law in Congress's stead. ... 
In Santos the Court was faced with the interpretation of the term "proceeds" in 
the federal money laundering statute, 18 U.S.C. §1956. "The federal money-laundering 
statute prohibits a number of activities involving criminal `proceeds."' Id, at 2023. 
Noting that the term "proceeds" was not defined in the statute, the Supreme Court stated 
the well settled principle that "when a term is undefined, we give it its ordinary 
meaning." Id, at 2024. Under the ordinary meaning principle, the government's position 
was that proceeds meant "receipts," while the defendant's position was that proceeds 
meant "profits." The Supreme Court recognized that under either of the proffered 
"ordinary meanings," the provisions of the federal money-laundering statute were still 
coherent, not redundant, and the statute was not rendered "utterly absurd." Under such a 
situation, citing to a long line of cases and the established rule of lenity, "the tie must go 
to the defendant." Id, at 2025. See portion of Court's opinion quoted above. "Because 
the `profits' definition of `proceeds' is always more defendant friendly that the `receipts' 
definition, the rule of lenity dictates that it should be adopted." Id. 
The recent case of United States i. Berdcal 595 F.Supp.2d 1326 (S.D. Fla. 2009), 
further supports Defendant's argument that the "rule of lenity" requires that the Court 
resolve any statutory interpretation conflict in favor of Defendant. Assuming for the sake 
of argument that Plaintiff's multiple counts, leading to a multiplication of the statutory 
10 
EFTA00233499

damages amount, is a reasonable interpretation, like Defendant's reasonable 
interpretation, under the "rule of lenity," any ambiguity is resolved in favor of the least 
draconian measure. In Berdeal, applying the rule of lenity, the Court sided with the 
Defendants' interpretation of the Lacey Act which makes illegal the possession of snook 
caught in specified jurisdictions. The snook had been caught in Nicaraguan waters. The 
defendants filed a motion to dismiss asserting the statute did not encompass snook caught 
in foreign waters. 
The United States disagreed. 
Both sides presented reasonable 
interpretations regarding the reach of the statute. In dismissing the indictment, the Court 
determined that the rule of lenity required it to accept defendants' interpretation. 
To allow a duplication or multiplication would subject Defendant EPSTEIN to a 
punishment that is not clearly prescribed — an unwritten multiplier of the "actual 
damages" or the presumptive minimum damages. 
The rule of lenity requires that 
Defendant's interpretation of the remedy afforded under §2255 be adopted. 
In addition, under the Due Process Clause's basic principle of fair warning - 
... a criminal statute must give fair warning of the conduct that it makes a 
crime ... . As was said in United States'. Harriss, 347 U.S. 612, 617, 74 
S.Ct. 808, 812, 98 L.Ed. 989, 
`The constitutional requirement of definiteness is violated by a criminal 
statute that fails to give a person of ordinary intelligence fair notice that 
his contemplated conduct is forbidden by the statute. The underlying 
principle is that no man shall be held criminally responsible for conduct 
which he could not reasonably understand to be proscribed.' 
Thus we have struck down a [state] criminal statute under the Due Process 
Clause where it was not `sufficiently explicit to inform those who are subject 
to it what conduct on their part will render them liable to its penalties.' 
Connally I. General Const. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 
Ltd. 322. We have recognized in such cases that `a statute which either 
forbids or requires the doing of an act in terms so vague that men of common 
intelligence must necessarily guess at its meaning and differ as to its 
application violates the first essential of due process of law,' ibid., and that 
11 
EFTA00233500

`No one may be required at peril of life, liberty or property to speculate as to 
the meaning of penal statutes. All arc entitled to be informed as to what the 
State commands or forbids.' Lanzctta I. New Jersey, 306 U.S. 451, 453, 59 
S.Ct. 618, 619, 83 L.Ed. 888. 
Thus, applying the statutory analysis, in A. and these well-entrenched 
constitutional principles of statutory interpretation and application in 13., Plaintiff's cause 
of action — Counts One through Six — to the extent Plaintiff is attempting to multiply 
actual damages or the presumptive amount of damages, is required to be dismissed for 
failure to state a cause of action. 
f2) In addition, if Plaintiff is relying on the amended version of 18 U.S.C. 622SS, 
such reliance is improper and requires dismissal of the entire action. It is 
Defendant's position that 18 U.S.C. 42255 in effect prior to the 2006 
amendments applies to this action. 
f3) Further, Count Six is also required to be dismissed as it relies on a predicate 
act that was not in effect at the time of the alleged conduct.6
Plaintiff does not specifically allege in her Complaint on which version of 18 
U.S.C. §2255 she is relying. However, in the purported Count Six of her Complaint, 150, 
she alleges that Defendant "knowingly engaged in a child exploitation enterprise, as 
defined in 18 U.S.C. §2252A(g)(2), in violation of 18 U.S.C. §2252A(g)(1)." §2252A is 
one of the specified predicate acts under 18 U.S.C. §2255. However, subsection (g) of 
§2252 was not added to the statute until 2006. Thus, to the extent that Plaintiff is relying 
on the amended version, such reliance is improper and the entire action is required to be 
dismissed. Further, in the alternative, Count Six is required to be dismissed as it relies on 
a statutory predicate act that did not exist at the time of the alleged conduct. 
The statute in effect during the time the alleged conduct occurred is 18 U.S.C. 
§2255 (2005) — the version in effect prior to the 2006 amendment, eff. Jul. 27, 2006, 
° Points (2) and (3) are addressed together as the legal arguments overlap. 
12 
EFTA00233501

(quoted above), and having an effective date of 1999 through July 26, 2006. See 
endnote 1 hereto. Plaintiff's Complaint alleges that Defendant's conduct occurred during 
the time period from the age of 17, January 2004 until approximately May 2005. 
Complaint, VII 7, 18. Thus, the version in effect in 2004-2005 of 18 U.S.C. §2255 
applies. 
Under applicable law, the statute in effect at the time of the alleged conduct 
applies. See U.S. 
Scheidt, Slip Copy, 2010 WL 144837, fn. 1 (E.D.Cal. Jan. 11, 2010); 
U.S. I. Remo, 2009 WI, 2579103, fn. 1 (E.D. Cal. Aug. 19, 2009)• U.S. 
Ferenc', 2009 
WI. 2579102, fn. I (E.D. Cal. Aug. 19, 2009); U.S. I. Monk, 2009 WL 2567831, fn. I 
(E.D. Cal. Aug. IS, 2009); U.S. I. Zane, 2009 WL 2567832, fn.l (E.D. Cal. Aug. 18 
2009). In each of these cases, the referenced footnote states — 
Prior to July 27, 2006, the last sentence in Section §2255(a) read "Any 
person as described in the preceding sentence shall be deemed to have 
sustained damages of no less than $50,000 in value." Under the civil statute, 
the minimum restitution amount for any violation of Section 2252 (the 
predicate act at issue) is $150,000 for violations occurring after July 27, 2006 
and $50,000 for violations occurring prior to $50,000. 
Even with the typo (the extra "$50,000") at the end of the quoted sentence, it is 
clear that the Court applied the statute in effect at the time of the alleged criminal conduct 
constituting one of the statutorily enumerated predicate acts, which is consistent with 
applicable law discussed more fully below herein. 
It is an axiom of law that "retroactivity is not favored in the law." Bowen, 488 
U.S., at 208, 109 S.Ct., at 471 (1988). As eloquently stated in Landgraf I. USI Film 
Products 114 S.Ct. 1483, 1497, 511 U.S. 244, 265-66 (1994): 
... the presumption against retroactive legislation is deeply rooted in our 
jurisprudence, and embodies a legal doctrine centuries older than our Republic. 
Elementary considerations of fairness dictate that individuals should have an 
opportunity to know what the law is and to conform their conduct accordingly; settled 
13 
EFTA00233502

expectations should not be lightly disrupted .pus For that reason, the "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." Kaiser, 494 U.S., at 855, 110 
S.Ct., at 1586 (SCALIA, J., concurring). In a free, dynamic society, creativity in both 
commercial and artistic endeavors is fostered by a rule of law that gives people 
confidence about the legal consequences of their actions. 
FN18. See Genera! Motors Corp. 
Romein, 503 U.S. 181, 191, 112 S.C. 1105, 
1112, 117 L.Ed.2d 328 (1992) ("Retroactive legislation presents problems of 
unfairness that are more serious than those posed by prospective legislation, because 
it can deprive citizens of legitimate expectations and upset settled transactions"); 
(Further citations omitted]. 
It is therefore not surprising that the antiretroactivity principle finds expression in 
several provisions of our Constitution. The Ex Post Facto Clause flatly prohibits 
retroactive application of penal legislation.FN19 Article I, § 10, cl. I, prohibits States 
from passing another type of retroactive legislation, laws "impairing the Obligation of 
Contracts." The Fifth Amendments Takings Clause prevents the Legislature (and other 
government actors) from depriving private persons of vested property rights except for 
a "public use" and upon payment of "just compensation." The prohibitions on "Bills of 
Attainder" in Art. I, §§ 9-10, prohibit legislatures from singling out disfavored persons 
and meting out summary punishment for past conduct. See, e.g., United States 
Brown, 381 U.S. 437, 456-462, 85 S.Ct. 1707, 1719-1722, 14 L.Ed.2d 484 (1965). The 
Due Process Clause also protects the interests in fir notice and repose that may be 
compromised by retroactive legislation; a justification sufficient to validate a statute's 
prospective applicagion under the Clause "may not suffice" to warrant its retroactive 
application. Usery 
Turner Elkhorn Mining Co., 428 U.S. 1, 17, 96 S.Ct. 2882, 2893, 
49 L.Ed.2d 752 (1976). 
FNI9. Article I contains two Ex Post Facto Clauses, one directed to Congress (§ 9, 
cl. 3), the other to the States (§ 10, cl. I). We have construed the Clauses as 
applicable only to penal legislation. See Calder I Bull, 3 Dall. 386, 390-391, 
L.Ed. 648 (1798) (opinion of Chase, J.). 
These provisions demonstrate that retroactive statutes raise particular concerns. The 
Legislature's unmatched powers allow it to sweep away settled expectations suddenly 
and without individualized consideration. Its responsivity to political pressures poses a 
risk that it may be tempted to use retroactive legislation as a means of retribution 
against unpopular groups or ingividuals. As Justice Marshall observed in his opinion for 
*9498 the Court in Weaver I Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 
(1981), the Ex Post Facto Clause not only ensures that individuals have "fair warning" 
about the effect of criminal statutes, but also "restricts governmental power by 
restraining arbitrary and potentially vindictive legislation." Id.. at 28-29, 101 S.Ct., at 
963-964 (citations omitted). FN10
FN20. See Richmond I J. A. Croton Co., 488 U.S. 469, 513-514, 109 S.Ct. 706, 
732, 102 L.Ed.2d 854 (1989) ("Legislatures are primarily policymaking bodies that 
promulgate rules to govern future conduct. The constitutional prohibitions against 
the enactment of ex post facto laws and bills of attainder reflect a valid concern 
about. the use of the political process to punish or characterize past conduct of 
14 
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private citizens. It is the judicial system, rather than the legislative process, that is 
best equipped to identify past wrongdoers and to fashion remedies that will create 
the conditions that presumably would have existed had no wrong been committed") 
(STEVENS, J., concurring in part and concurring in judgment); James I United 
States, 366 U.S. 213, 247, n. 3, 81 S.Ct. 1052, 1052, n. 3, 6 L.Ed.2d 246 (1961) 
(retroactive punitive measures may reflect "a purpose not to prevent dangerous 
conduct generally but to impose by legislation a penalty against specific persons or 
classes of persons"). 
These well entrenched constitutional protections and presumptions against 
retroactive application of legislation establish that 18 U.S.C. §2255 (2005) in effect at the 
time of the alleged conduct applies to the instant action, and not the amended version. 
II. Not only is there no clear express intent stating that the statute is to apply 
retroactively, but applying the current version of the statute, as amended in 2006, would 
be in clear violation of the Ex Post Facto Clause of the United States Constitution as it 
would be applied to events occurring before its enactment and would increase the penalty 
or punishment for the alleged crime. U.S. Const. Art. 1, §9, cl. 3, §10, cl. 1. U.S. I. 
Seigel, 153 F.3d 1256 (1 11h Cir. 1998); U.S. 
Edwards, 162 F.3d 87 (3d Cir. 1998); and 
generally, Calder 
Bull, 3 U.S. 386, 390, I L.Ed. 648, 1798 WL 587 (Calder) (1798). 
The United States Constitution provides that "[n]a Bill of Attainder or cx 
post facto Law shall be passed" by Congress. U.S. Const. art. I, § 9, cl. 3. A law 
violates the Ex Post Facto Clause if it " `appli[es] to events occurring before its 
enactment ... [and] disadvantage[s] the offender affected by it' by altering the 
definition of criminal conduct or increasing the punishment for the crime." 
Lynce 
Mathis 519 U.S. 433, 117 S.Ct. 891, 137 L.F,d.2d 63 (1997) (quoting 
Weaver 
Graham 450 U.S. 24, 29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981)). 
U.S. I. Siegel,153 F.3d 1256, 1259 (11th Cir. 1998). 
§2255 is contained in Title 18 of the United States Codes - "Crimes and Criminal 
Procedure, Part 1. Crimes, Chap. 110. Sexual Exploitation and Other Abuse of Children." 
18 U.S.C. §2255 (2005), is entitled Civil remedy for personal injuries, and imposes a 
presumptive minimum of damages in the amount of $50,000, should Plaintiff prove any 
15 
EFTA00233504

violation of the specified criminal statutes and that she suffered personal injury and 
sustained actual damages. Thus, the effect of the 2006 amendments, effective July 27, 
2006, would be to triple the amount of the statutory minimum previously in effect during 
the time of the alleged acts. 
The statute, as amended in 2006, contains no language stating that the application 
is to be retroactive. Thus, them is no manifest intent that the statute is to apply 
retroactively, and, accordingly, the statute in effect during the time of the alleged conduct 
is to apply. Landgraf 
USI Film Products supra, at 1493, ("A statement that a statute 
will become effective on a certain date does not even arguably suggest that it has any 
application to conduct that occurred at an earlier date."). 
This statute was enacted as part of the Federal Criminal Statutes targeting sexual 
predators and sex crimes against children. H.R. 3494, "Child Protection and Sexual 
Predator Punishment Act of 1998;" House Report No. 105-557, 11, 1998 U.S.C.A.N. 
678, 679 (1998). Quoting from the "Background and Need For Legislation" portion of 
the I louse Report No. 105-557, 11-16, H.R. 3494, of which 18 U.S.C. §2255 is included, 
is described as "the most comprehensive package of new crimes and increased penalties 
ever developed in response to crimes against children, particularly assaults facilitated by 
computers." 
Further showing that §2255 was enacted as a criminal penalty or 
punishment, "Title II — Punishing Sexual Predators," Sec. 206, from House Report No. 
105-557, 5-6, specifically includes reference to the remedy created under §2255 as an 
additional means of punishing sexual predators, along with other penalties and 
punishments. Senatorial Comments in amending §2255 in 2006 confirm that the creation 
of the presumptive minimum damage amount is meant as an additional penalty against 
16 
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those who sexually exploit or abuse children. 2006 WL 2034118, 152 Cong. Rec. S8012-
02. Senator Kerry refers to the statutorily imposed damage amount as "penalties." Id. 
The cases of U.S. I. Siegel, supra (I I's Cir. 1998), and U.S. . Edwards supra (3d 
Cir. 1998), also support Defendant's position that application of the current version of 18 
U.S.C. §2255 would be in clear violation of the Ex Post Facto Clause. In Siegel, the 
Eleventh Circuit found that the Ex Post Facto Clause barred application of the Mandatory 
Victim Restitution Act of 1996 (MVRA) to the defendant whose criminal conduct 
occurred before the effective date of the statute, 18 U.S.C. §3664(0(1)(A), even though 
the guilty plea and sentencing proceeding occurred after the effective date of the statute. 
On July 19, 1996, the defendant Siegel pleaded guilty to various charges under 18 U.S.C. 
§371 and §1956(a)(I)(A), (conspiracy to commit mail and wire fraud, bank fraud, and 
laundering of money instruments; and money laundering). He was sentenced on March 
7, 1997. As part of his sentence, Siegel was ordered to pay $1,207,000.00 in restitution 
under the MVRA which became effective on April 24, 1996. Pub.L. No. 104-132, 110 
Stat. 1214, 1229-1236. The 1996 amendments to MVRA required that the district court 
must order restitution in the full amount of the victim's loss without consideration of the 
defendant's ability to pay. Prior to the enactment of the MVRA and under the former 18 
U.S.C. §3664(a) of the Victim and Witness Protection Act of 1982 (VWI'A), Pub.l. No. 
97-291, 96 Stat. 1248, the court was required to consider, among other factors, the 
defendant's ability to pay in determining the amount of restitution. 
When the MVRA was enacted in 1996, Congress stated that the amendments to the 
VWPA "shall, to the extent constitutionally permissible, be effective for sentencing 
proceedings in cases in which the defendant is convicted on or after the date of enactment 
17 
EFTA00233506

of this Act [Apr. 24, 1996]." Siegel, supra at 1258. The alleged crimes occurred between 
February, 1988 to May, 1990. The Court agreed with the defendant's position that 1996 
MVRA "should not be applied in reviewing the validity of the court's restitution order 
because to do so would violate the Ex Post Facto Clause of the United States 
Constitution. See U.S. Const. art I, §9, cl. 3." 
The Ex Post Facto analysis made by the Eleventh Circuit in Siegel is applicable to 
this action. In resolving the issue in favor of the defendant, the Court first considered 
whether a restitution order is a punishment. Id, at 1259. In determining that restitution 
was a punishment, the Court noted that §3663A(a)(I) of Title 18 expressly describes 
restitution as a "penalty." In addition, the Court also noted that "[allthough not in the 
context of an ex post facto determination, ... restitution is a 'criminal penalty meant to 
have strong deterrent and rehabilitative effect.' United States 
Twitty 107 F.3d 1482, 
1493 n. 12 (11th Cir.1997)." Second the Court considered "whether the imposition of 
restitution under the MVRA is an increased penalty as prohibited by the Ex Post Facto 
Clause." Id, at 1259. In determining that the application of the 1996 MVRA would 
indeed run afoul of the Constitution's Ex Post Facto Clause, the Court agreed with the 
majority of the Circuits that restitution under the 1996 MVRA was an increased penalty.?
"The effect of the MVRA can be detrimental to a defendant. Previously, after considering 
the defendant's financial condition, the court had the discretion to order restitution in an 
amount less than the loss sustained by the victim. Under the MVRA, however, the court 
The Eleventh Circuit, in holding that "the MVRA cannot be applied to a person whose 
criminal conduct occurred prior to April 24, 1996," was "persuaded by the majority of 
districts on this issue." "Restitution is a criminal penalty carrying with it characteristics 
of criminal punishment." Siegel, supra at 1260. The Eleventh Cir iit is in agreement 
with the Second, Third, Eighth, Ninth, and D.C. Circuits. See U.S. . Futrell 209 F.3d 
1286, 1289-90 (1 Oh Cir. 2000). 
18 
EFTA00233507

must order restitution to each victim in the full amount." Id, at 1260. See also U.S. I. 
Edwards 162 F.2d 87 (3rd Circuit 1998). 
In the instant case, in answering the first question, it is clear that that imposition of 
a minimum amount of damages, regardless of the amount of actual damages suffered by a 
minor victim, is meant to be a penalty or punishment. See statutory text and House Bill 
Reports, cited above herein, consistently referring to the presumptive minimum damages 
amount under §2255 as "punishment" or "penalties." According to the Ex Post Facto 
doctrine, although §2255 is labeled a "civil remedy," such label is not dispositive; "if the 
effect of the statute is to impose punishment that is criminal in nature, the cx post facto 
clause is implicated." See generally, Roman Catholic Bishop of Oakland'. Superior 
Court, 28 Cal.Rptr.3d 355, at 360, citing Kansas'. I Icndricks, 521 U.S. 346, 360-61 
(1997). The effect of applying the 2006 version of §2255 would be to triple the amount 
of the presumptive minimum damages to a minor who proves the elements of her §2255 
claim. The fact that a plaintiff proceeding under §2255 has to prove a violation of a 
criminal statute and suffer personal injury to recover damages thereunder, further 
supports that the imposition of a minimum amount, regardless of a victim's actual 
damages sustained, is meant and was enacted as additional punishment or penalty for 
violation of criminal sexual exploitation and abuse of minors. 
Accordingly, this Court is required to apply the statute in effect at the time of the 
alleged criminal acts. Not only is there no language in the 2006 statute stating that it is to 
apply retroactively, but further, such application of the 2006 version of 18 U.S.C. §2255 
to acts that occurred prior to its effective date would have a detrimental and punitive 
19 
EFTA00233508