DEFENDANT *'S MOTION TO DISMISS

BASED ON STATUTE OF LIMITATIONS

COMES NOW the defendant, * * *, by his undersigned counsel, pursuant to Rule 12(b) of the Federal Rules of Criminal Procedure, and moves this Honorable Court to dismiss the indictment in this cause on the basis that the indictment was not obtained until after the statute of limitations in effect on the date of the charged offense had expired; that the extension of the statute of limitations enacted after the date of the charged offense violates the ex post facto clause of the United States Constitution; and that the extension of the statute of limitations for the charged offense violates the bill of attainder and the due process clauses of the United States Constitution.

FACTS

The facts pertinent to this motion are as follows:

1. The indictment in this cause alleges a single violation of 18 U.S.C. § 844(i), and that the offense occurred on or about March 19, 1990.

2. The statute of limitations for a violation of 18 U.S.C. § 844(i) in effect at the time of the alleged offense was five years. See 18 U.S.C. § 844(i) (1990); 18 U.S.C. § 3282 (1990).

3. On September 13, 1994, the Congress amended 18 U.S.C. § 844(i) to extend to seven years the statute of limitations for a violation of this subsection. See Pub.L. 103-322, § 320917(a)

4. The indictment against Mr. * was filed on April 5, 1995. The applicable statute of limitations was five years; therefore the indictment was filed 16 days after the statute of limitations had expired.

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1 Article I, Section 9.

2 See footnote 1, supra.

MEMORANDUM OF LAW

The Supreme Court has yet to rule on the question presented by this motion, ie., whether a change in the statute of limitations enacted subsequent to the commission of a criminal offense may be applied retroactively, or, put another way, whether the applicable statute of limitations is the one in effect at the time of the offense or the one in effect at the time of indictment.

The Eleventh Circuit, however, has implicitly held that an extension of a criminal statute of limitations cannot be applied retroactively. In Stoner v. Graddick, 751 F.2d 1535 (llth Cir. 1985), the Court upheld against an equal protection challenge on an Alabama state court of appeals ruling that the statute of limitations in effect at the time of the crime governs. The defendant in Stoner was seeking to benefit from a reduction in the statute of limitations which took place after the offense but before his indictment. The Eleventh Circuit ratified as rational the state court's basis for holding that the statute in effect at the time of the crime must govern, which basis was to prevent the legislature from enlarging the statute of limitations until a particular criminal is tried and sentenced, an application which, according to the Eleventh Circuit, would be a violation of the ex post facto provision, Article I, section 9, United States Constitution. The proposition that a defendant may not be indicted under a statute of limitations that has been extended after the date of the commission of

the charged offense is a necessary premise of the Stoner holding, and thus has the same force as the holding itself.

In addition, the extension of the statute of limitations, as applied to Mr. *, amounts to a bill of attainder in that the extension affects a limited and ascertainable class of persons who are alleged

to have committed the subject offense from September 14, 1989 to September 13, 1994, one of

whom is Mr. *. See United States v. Brown, 381 U.S. 437, 85 S.Ct. 1707 (1965), Nixon v. Administrator of General Services, 433 U.S. 425, 97 S.Ct. 2777 (1977).

It is a violation of fundamental due process for the Attorney General to conduct an investigation of Mr. * for several years, then shortly before the statute of limitations expires instead of indicting Mr. *, going to Congress and asking for the statue of limitations to be extended so that it could continue its investigation longer than was permitted by law. When the government found that it could not win by playing by the rules, it changed the rules. This must outrage every person who has any sense of justice and fair play.

WHEREFORE the defendant, * * *, respectfully requests this Honorable Court dismiss with prejudice the indictment against him.

Respectfully submitted,

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