15–923
Weingarten v. United States
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
______________
August Term 2016
(Argued: May 15, 2017 Decided: July 27, 2017)
Docket No. 15‐923
ISRAEL WEINGARTEN,
Petitioner‐Appellant,
–v.–
UNITED STATES OF AMERICA,
Respondent‐Appellee.
______________
Before:
PARKER, WESLEY, and DRONEY, Circuit Judges.
Appeal from a March 8, 2016 order of the United States
District Court for the Eastern District of New York (Gleeson, J.)
1
denying the 28 U.S.C. § 2255 petition of appellant Israel
Weingarten, who is currently serving a thirty‐year term of
imprisonment following convictions of two counts of
transporting a minor in foreign commerce for the purpose of
engaging in criminal sexual activity and two counts of traveling
in foreign commerce for the purpose of engaging in sexual
conduct with a minor in violation of 18 U.S.C. § 2423. On appeal,
Weingarten argues principally that his trial counsel was
constitutionally ineffective for conceding a statute of limitations
defense. In this opinion, we AFFIRM the portion of the District
Court’s order pertaining to that argument; in a summary order
filed contemporaneously, we AFFIRM the balance of the order.
______________
TODD W. BURNS, Burns & Cohan, San Diego, CA (Jodi D.
Thorp, Clarke, Johnston, Thorp & Rice, San Diego, CA,
on the brief), for petitioner‐appellant.
JENNIFER M. SASSO, Assistant United States Attorney (Jo
Ann M. Navickas, Assistant United States Attorney, on
the brief), for Bridget M. Rhode, Acting United States
Attorney for the Eastern District of New York,
Brooklyn, NY, for respondent‐appellee.
______________
WESLEY, Circuit Judge:
In 2008, petitioner‐appellant Israel Weingarten was
indicted on five counts of violating 18 U.S.C. § 2423 for sexually
abusing his then‐sixteen‐year‐old daughter on three
international trips in 1997. Weingarten was convicted on all
counts following a jury trial, and he was sentenced on four of
2
those counts after one was vacated on direct appeal. He now
appeals from a March 8, 2016 order of the United States District
Court for the Eastern District of New York (Gleeson, J.) denying
relief under 28 U.S.C. § 2255. Weingarten’s § 2255 petition
argued, inter alia, that his trial counsel failed to provide
constitutionally effective assistance when they conceded before
trial that the charges were timely under the applicable statute of
limitations, 18 U.S.C. § 3283 (2003). Weingarten contends his
counsel should have argued that (1) the 2003 version of § 3283
does not apply retroactively to his 1997 offense conduct and,
alternatively, (2) under the categorical approach, § 2423 charges
are subject to the default five‐year federal criminal limitations
period, 18 U.S.C. § 3282, rather than the extended limitations
period for child sexual abuse offenses, § 3283. Because counsel’s
decision to forgo these arguments was not objectively
unreasonable, we AFFIRM the order of the District Court.1
I.
The facts and procedural history surrounding
Weingarten’s case are discussed in detail in our opinions in his
direct appeals, United States v. Weingarten (“Weingarten I”), 632
F.3d 60, 62–63 (2d Cir. 2011), and United States v. Weingarten
(“Weingarten II”), 713 F.3d 704, 707–08 (2d Cir. 2013). We relate
here only the events relevant to the narrow statute of limitations
issue before us in this opinion.
1 Weingarten also argues (1) his trial counsel provided ineffective
assistance because they were unprepared, (2) his sentencing counsel
provided ineffective assistance by failing to object to a sentencing
consideration, and (3) the Government committed prosecutorial
misconduct. We AFFIRM the District Court’s rejection of these
arguments in a summary order issued simultaneously with this
opinion.
3
A.
Weingarten and his now‐ex‐wife have eight children. Jane
Doe, the victim in this case and their eldest daughter, was born
in 1981.
The Weingartens lived in Antwerp, Belgium for much of
Doe’s early life. When Doe was nine or ten years old,
Weingarten began to abuse her sexually. Doe started resisting
her father’s advances when she was thirteen or fourteen years
old and eventually complained to her school principal about the
abuse.
In April 1997, Weingarten moved his family to Bet
Shemesh, Israel as a result of his daughter’s compliant.
Weingarten continued to abuse Doe in Israel.
In late July 1997, Weingarten took Doe, who was sixteen
at the time, on a trip from their home in Israel to visit his ailing
father in Brooklyn, New York. Weingarten and Doe stayed in
Brooklyn for roughly one month. Weingarten sexually abused
Doe during that time.
In August 1997, Weingarten transported Doe from
Brooklyn to the old family home in Antwerp, where they
remained for approximately a month. While in Belgium,
Weingarten sexually abused Doe “night and day, every day.”
Weingarten I, 632 F.3d at 63 (quoting Trial Tr. 290:14).
Doe returned to Israel in September of 1997 and told her
mother of her father’s abuse shortly after returning home. Doe’s
mother helped Doe move to a boarding school in England for the
remainder of her secondary education, but no one reported
Weingarten’s conduct to relevant law enforcement authorities.
Doe eventually immigrated to the United States. Her
entire family, including her father, a United States citizen,
4
followed soon thereafter and settled in New York. Weingarten
and his wife divorced three years later. Despite allegations from
his wife in post‐divorce custody proceedings that he sexually
abused Doe, Weingarten was awarded sole custody of his minor
children in 2004.
B.
Weingarten’s 1997 abuse of Doe eventually came to the
attention of federal authorities. On August 18, 2008, a federal
grand jury in the Eastern District of New York indicted
Weingarten for his 1997 trips with Doe on two counts of
transporting a minor in foreign commerce for the purpose of
engaging in criminal sexual activity in violation of 18 U.S.C.
§ 2423(a) and three counts of traveling in foreign commerce for
the purpose of engaging in sexual conduct with a minor in
violation of 18 U.S.C. § 2423(b).
On November 26, 2008, Weingarten moved to dismiss the
indictment on two grounds relevant to this appeal. First,
Weingarten argued that Count Three of the indictment, which
involved Weingarten’s April 1997 trip from Belgium to Israel,
should be dismissed because it lacked a territorial nexus with the
United States. Second, Weingarten argued the entire indictment
should be dismissed because the eleven‐year delay between his
offense conduct and the indictment violated the Due Process
Clause of the Fifth Amendment to the United States
Constitution. In arguing pre‐indictment delay, Weingarten
explicitly conceded that his indictment was timely because it
was subject to the 2003 version of 18 U.S.C. § 3283, which
permitted the prosecution of “offense[s] involving the sexual . . .
abuse . . . of a child under the age of 18 years . . . during the life
of the child.” PROTECT Act, Pub. L. No. 108–21, § 202, 117 Stat.
5
650, 660 (2003).2 He insisted nevertheless that the indictment was
unconstitutional because he was “substantially prejudiced” by
the delay. J.A. 763.
The District Court denied Weingarten’s motion in early
2009. Weingarten was tried before a jury and convicted on all
five counts.
Weingarten appealed his convictions to this Court.
Weingarten I, 632 F.3d 60. He argued, inter alia, that the District
Court erred in denying his motion to dismiss Count Three for
want of a territorial nexus with the United States. See id. at 63. He
did not raise a statute of limitations argument. We agreed that
§ 2423(b) requires a territorial nexus with the United States and
that Weingarten’s Antwerp‐to‐Israel trip did not satisfy that
requirement. As a result, we vacated Weingarten’s conviction on
Count Three, affirmed Weingarten’s remaining counts of
conviction, and remanded for resentencing. See id. at 64–71;
United States v. Weingarten, 409 F. App’x 433 (2d Cir. 2011).
On remand, the District Court sentenced Weingarten to
thirty years’ imprisonment, which we affirmed and which he is
currently serving. Weingarten II, 713 F.3d at 708–16.
2 Although Weingarten stated in his motion to dismiss that he believed
the 2003 version of § 3283 applied to his case, he quoted language from
the 2006 version of § 3283, which provides a limitations period in child
sexual abuse cases that runs for the life of the child “or . . . ten years
after the offense, whichever is longer.” Violence Against Women and
Department of Justice Reauthorization Act of 2005, Pub. L. No. 109–
162, § 1182(c), 119 Stat. 2960, 3127. Throughout the present § 2255
litigation, the parties have treated Weingarten’s motion as conceding
that the 2003 version applied notwithstanding the 2006 quotation. We
adopt the same interpretation.
6
C.
Weingarten timely petitioned the District Court for relief
under 28 U.S.C. § 2255, represented for the first time by present
counsel. Weingarten argued, inter alia, that he was denied
effective assistance of counsel because trial counsel conceded the
indictment was timely under 18 U.S.C. § 3283 (2003). The District
Court denied Weingarten’s petition, stating:
I think the [G]overnment is correct that the proper
statute of limitations was [§] 3283. I agree that
transporting a minor with the intent to engage in
criminal sexual activity involved sexual abuse of a
minor. I also agree that the post‐2003 version of the
statute applies to this case.
Special App. 29. We issued Weingarten a certificate of
appealability to contest that decision.
II.
As noted, Weingarten argues he was denied his Sixth
Amendment right to counsel because his trial counsel conceded
the indictment was timely. He offers two arguments that he
believes counsel should have made instead of conceding
timeliness. First, Weingarten asserts counsel should have argued
the shorter limitations period in the 1994 version of § 3283
applied to his 1997 offense conduct because Congress did not
intend the longer period in the 2003 version of § 3283 to apply
retroactively. Second, Weingarten asserts counsel should have
argued the standard five‐year limitations period for federal
crimes provided in 18 U.S.C. § 3282 applied to his conduct
because, under the categorical approach, § 3283 does not apply
7
to 18 U.S.C. § 2423 offenses. Neither argument warrants relief
under § 2255.3
A.
There is “a strong presumption that counsel’s conduct fell
within the wide range of professional assistance.” Lynch v. Dolce,
789 F.3d 303, 311 (2d Cir. 2015) (brackets omitted) (quoting
Strickland v. Washington, 466 U.S. 668, 689 (1984)). To overcome
that presumption, a petitioner must establish two elements. First,
the petitioner must show that counsel’s performance was
deficient by demonstrating that the representation “fell below an
objective standard of reasonableness.” Strickland, 466 U.S. at 688.
Second, the petitioner must show that counsel’s deficient
representation was prejudicial to the defense by establishing
“that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Id. at 694.
B.
Weingarten’s trial counsel submitted a sworn affidavit in
the § 2255 proceeding in which they justified the decision to
forgo a statute of limitations defense as “a technique of writing
and of . . . strategy.” App. 447. Weingarten’s counsel considered
the statute of limitations defense “tenuous” and believed it
would “clutter” the motion to dismiss and distract from the
motion’s other “strong point[s].” App. 448. That decision was
reasonable under the circumstances of this case.
The Supreme Court long ago made clear that the Sixth
Amendment does not require counsel to raise every non‐
Our review is de novo. Puglisi v. United States, 586 F.3d 209, 215 (2d
3
Cir. 2009).
8
frivolous argument a client requests. See Jones v. Barnes, 463 U.S.
745, 753–54 (1983).4 It is the very function of an effective legal
counselor to select among the available arguments and raise
only “the most promising issues for review.” Jones, 463 U.S. at
752. Such a tactic avoids cluttering the court with unnecessary
arguments that would “dilute the force of the stronger ones.” Id.
Courts on collateral review may not “second‐guess reasonable
professional judgments and impose on . . . counsel a duty to
raise every ‘colorable’ claim suggested by a client.” Id. at 754.
Nevertheless, failure to raise an argument may, in some
instances, constitute deficient performance. E.g., Lynch, 789 F.3d
at 312–16; Mayo, 13 F.3d at 534–36. “[A] petitioner may establish
constitutionally inadequate performance if he shows that
counsel omitted significant and obvious issues while pursuing
issues that were clearly and significantly weaker.” Mayo, 13 F.3d
at 533 (emphasis added). “[R]elief may be warranted when a
decision by counsel [to forgo an argument] cannot be justified as
a result of some kind of plausible [litigation] strategy.” Jackson v.
Leonardo, 162 F.3d 81, 85 (2d Cir. 1998).
“In assessing [an] attorney’s performance, a reviewing
court must judge his conduct on the basis of the facts of the
particular case . . . and may not use hindsight to second‐guess
his strategy choices.” Mayo, 13 F.3d at 533 (citation omitted). A
4 Although Jones addressed whether appellate counsel’s decision to
forgo arguments constituted ineffective assistance, it informs our
analysis of trial counsel’s conduct in this case. See Thomas v. United
States, 737 F.3d 1202, 1208–09 (8th Cir. 2013) (applying Jones in a § 2255
challenge to “trial counsel’s decision not to move to dismiss the
indictment”); cf. Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994)
(“Although the Strickland test was formulated in the context of
evaluating a claim of ineffective assistance of trial counsel, the same
test is used with respect to appellate counsel.”).
9
reviewing court must therefore evaluate an attorney’s
performance in light of the state of the law at the time of the
attorney’s conduct. See Strickland, 466 U.S. at 690. “Counsel is not
required to forecast changes in the governing law.” Mayo, 13
F.3d at 533.
Our analysis begins and ends with whether the statute of
limitations arguments Weingarten, with the benefit of hindsight,
now asserts that his counsel should have raised were “significant
and obvious.” See Mayo, 13 F.3d at 533. Both arguments were
clearly significant; either would have furnished Weingarten a
complete defense to the entire indictment. However, neither
argument was so obvious that it was unreasonable for
Weingarten’s counsel to forgo it. We therefore conclude trial
counsel did not provide objectively unreasonable representation
without relying on whether trial counsel’s Due Process Clause
and extraterritoriality arguments were “clearly and significantly
weaker.” See id.5
1.
Weingarten contends that the 1994 version of § 3283,
rather than the 2003 version, clearly applied to his 1997 offense
conduct.
In 1994, when Doe was thirteen years old, Congress
amended § 3283 to provide: “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
5 The extraterritoriality argument, which proved meritorious on
Weingarten’s first appeal, was not weak. See Weingarten I, 632 F.3d at
64–71. But it produced a weaker result (dismissal of a single count of
the indictment) than a successful statute of limitations defense would
have (dismissal of the entire indictment).
10
years.” Violent Crime Control and Law Enforcement Act of 1994,
Pub. L. No. 103–322, § 330018(a), 108 Stat. 1796, 2148 (emphasis
added). This extended the federal criminal limitations period for
child sex abuse offenses, making it easier to prosecute offenders
who commit sex crimes that may be difficult to detect quickly.
See, e.g., David McCord, Expert Psychological Testimony About
Child Complainants in Sexual Abuse Prosecutions, 77 J. CRIM. L &
CRIMINOLOGY 1, 60–61 (1986) (“[I]t is not unusual for children to
delay in reporting sexual abuse . . . .”); Basyle J. Tchividjian,
Predators and Propensity, 39 AM. J. CRIM. L. 327, 370 (2012)
(“[C]hildren often delay or even fail to report sexual
abuse . . . .”).
After nearly a decade, Congress began to view even the
extended limitations period in the 1994 version of § 3283 as
“inadequate in many cases” because it released from criminal
liability sex abusers whose crimes were not brought to the
attention of federal authorities until after their victims turned
twenty‐five. H.R. Conf. Rep. No. 108–66, at 54 (2003). Thus, in
2003, when Doe was twenty‐two years old, Congress amended
§ 3283 to provide: “No statute of limitations that would
otherwise preclude prosecution for an offense involving the
sexual or physical abuse, or kidnaping, of a child under the age
of 18 years shall preclude such prosecution during the life of the
child.” PROTECT Act, § 202, 117 Stat. at 660 (emphasis added).
Weingarten clearly fell within the class of perpetrators
that were of great concern to Congress in 2003. Weingarten
sexually abused Doe in 1997, when she was sixteen. Although
Doe reported the abuse to her mother in September 1997 and her
mother in turn made similar accusations in post‐divorce custody
proceedings in 2003, federal prosecutors did not indict
Weingarten until 2008, when Doe was twenty‐seven.
11
That presented a statute of limitations issue. Weingarten’s
prosecution would be time‐barred under the 1994 version of
§ 3283, which was in effect at the time of Doe’s abuse, but timely
under the 2003 version of § 3283, if it applied retroactively to
Weingarten’s conduct in 1997. The relevant questions on this
§ 2255 appeal thus become: Did the 2003 version of § 3283 apply
retroactively to Weingarten’s conduct? And if it did not, should
that have been “obvious” to Weingarten’s trial counsel at the
time of the motion to dismiss? See Mayo, 13 F.3d at 533. The first
question is difficult; its complexity forecasts the answer to the
second.
In Landgraf v. USI Film Products, 511 U.S. 244 (1994), the
Supreme Court established a two‐part test to determine whether
a statute applies retroactively. First, if Congress “expressly
prescribed” that a statute applies retroactively to antecedent
conduct, “the inquiry ends[] and the court enforces the statute as
it is written,” save for constitutional concerns. In re Enter. Mortg.
Acceptance Co. Sec. Litig. (“Enterprise”), 391 F.3d 401, 405–06 (2d
Cir. 2004) (quoting Landgraf, 511 U.S. at 280); see also Stogner v.
California, 539 U.S. 607, 610 (2003) (“The Constitution’s two Ex
Post Facto Clauses prohibit the Federal Government and the
States from enacting laws with certain retroactive effects.”).
Second, when a statute “is ambiguous or contains no express
command” regarding retroactivity, a reviewing court must
determine whether applying the statute to antecedent conduct
would create presumptively impermissible retroactive effects.
Enterprise, 391 F.3d at 406; see Landgraf, 511 U.S. at 263–79. If it
would, then the court shall not apply the statute retroactively
“ ‘absent clear congressional intent’ to the contrary.” Enterprise,
391 F.3d at 406 (quoting Landgraf, 511 U.S. at 280). If it would not,
then the court shall apply the statute to antecedent conduct. See
Landgraf, 511 U.S. at 273 (“Even absent specific legislative
12
authorization, application of new statutes passed after the events
in suit is unquestionably proper in many situations.”).6
At the time of his motion to dismiss the indictment,
Weingarten may have been able to make a colorable argument at
the first step of the Landgraf analysis. He could have advanced
the arguments he makes here to try to persuade the District
Court that the 2003 version of § 3283 does not contain an
unambiguous statement from Congress that the provision
applies retroactively. Pursuing these arguments would have
involved responding to the Government’s argument that the
language at the beginning of the 2003 version § 3283 (“No statute
of limitations that would otherwise preclude prosecution . . . .”)
is a clear statement as to the statute’s retroactive effect.
Weingarten contends that there is a more natural
interpretation of that phrase that does not address
retroactivity—that Congress intended the language in the 2003
6 Landgraf analysis applies to both civil and criminal statutes. See
Johnson v. United States, 529 U.S. 694, 701 (2000) (citing Landgraf, 511
U.S. at 265); Al Bahlul v. United States, 767 F.3d 1, 12 (D.C. Cir. 2014) (en
banc) (applying Landgraf to statute governing jurisdiction to adjudicate
criminal offenses); United States v. Holcomb, 657 F.3d 445, 446 (7th Cir.
2011) (Easterbrook, J., concurring in denial of rehearing en banc)
(stating that Landgraf controls when deciding whether a criminal
penalty applies retroactively); United States v. Jackson, 480 F.3d 1014,
1018 (9th Cir. 2007) (“Although Landgraf . . . involved the possible
retrospective application of [a] civil statute[], the same approach to
statutory interpretation applies initially to determining the temporal
reach of a criminal statute.”); United States v. Martin, 363 F.3d 25, 46
(1st Cir. 2004) (applying Landgraf to decide whether a criminal
sentencing statute applies retroactively); United States v. Luna‐Reynoso,
258 F.3d 111, 115–16 (2d Cir. 2001) (applying Landgraf to decide
whether a statute criminalizes antecedent conduct).
13
version of § 3283 to clarify that the statute prescribes a statute of
limitations for applicable offenses that is different from the
default five‐year limitations period under federal law. See 18
U.S.C. § 3282. He also argues that, when Congress has in the past
intended a criminal statute of limitations to apply retroactively,
it has made that intent much clearer than the language on which
the Government relies here. In support of this argument,
Weingarten cites the 2001 amendment to 18 U.S.C. § 3286(b)
extending the statute of limitations for certain terrorism offenses,
USA PATRIOT ACT of 2001, Pub. L. No. 107–56, § 809(b), 115
Stat. 272, 381, which included the following application note:
“The amendments made by this section shall apply to the
prosecution of any offense committed before, on, or after the
date of the enactment of this section.” Id.; see also Crime Control
Act of 1990, 101 Pub L. No. 647, § 2505(b), 104 Stat. 4789, 4861
(“The amendments . . . shall apply to any offense committed
before the date of the enactment of this section, if the statute of
limitations applicable to that offense had not run as of such
date.” (amending 18 U.S.C. § 3293)). By comparison, Weingarten
argues, the 2003 amendment to § 3283 does not contain any clear
statement as to retroactivity. See PROTECT Act, § 202, 117 Stat.
at 660.
As reflected by this summary, Weingarten’s trial counsel
could have raised non‐frivolous arguments at the first step of the
Landgraf analysis. But see United States v. Jeffries, 405 F.3d 682,
684–85 (8th Cir. 2005). Had Weingarten prevailed in those
arguments, the District Court may have found it necessary to
proceed to the second step of Landgraf—deciding whether
applying the 2003 version of § 3283 to Weingarten’s 1997
conduct would create presumptively impermissible retroactive
effects. That would not have been an easy task.
14
The law on how to determine if a retroactive statutory
effect is presumptively impermissible is murky. Courts generally
disfavor statutory effects that “impair rights a party possessed
when he acted, increase a party’s liability for past conduct, or
impose new duties with respect to transactions already
completed.” Landgraf, 511 U.S. at 280. The Supreme Court has
also stated that a statute has presumptively impermissible
retroactive effects when it “takes away or impairs vested rights
acquired under existing laws, or creates a new obligation,
imposes a new duty, or attaches a new disability, in respect to
transactions or considerations already past.” Id. at 290 (quoting
Soc’y for Propagation of the Gospel v. Wheeler, 22 F. Cas. 756, 767
(C.C.N.H. 1814) (No. 13,156) (Story, J.)). But see Hughes Aircraft
Co. v. United States ex rel. Schumer, 520 U.S. 939, 947 (1997)
(observing Justice Story’s definition “constitute[s] a sufficient,
rather than a necessary, condition for invoking the presumption
against retroactivity”). But in the end, the Supreme Court has
acknowledged that “deciding when a statute operates
‘retroactively’ is not always a simple or mechanical task,”
Landgraf, 511 U.S. at 268, and courts must rely on judges’ “sound
. . . instincts,” as well as the principles of affording parties fair
notice, protecting reasonable reliance, and guarding settled
expectations, to guide their analyses, id. at 270 (brackets omitted)
(quoting Danforth v. Groton Water Co., 178 Mass. 472, 476 (1901)
(Holmes, J.)).
It has proved particularly difficult to categorize the
presumptively impermissible effects of retroactively applying a
statute of limitations. In Vernon v. Cassadaga Valley Cent. School
Dist., 49 F.3d 886 (2d Cir. 1995), we retroactively applied an
amendment to a statute of limitations that shortened a filing
period even absent clear congressional intent. We reasoned that
a statute of limitations “generally” does not create
15
presumptively impermissible retroactive effects because it
regulates “not the primary conduct of . . . defendants . . . but . . .
the secondary conduct of . . . plaintiffs” and therefore
“increase[s] neither party’s liability, nor impose[s] any new
duties with respect to past transactions.” Id. at 890.
In re Enterprise Mortgage Acceptance Co., a 2004 decision,
retreated from that broad statement regarding the retroactive
effects of a statute of limitations in a slightly different context.
391 F.3d at 406–10. The issue in Enterprise was whether an
amendment to a statute of limitations that extended a filing
period applies retroactively to revive civil claims that expired
under the old limitations statute. Id. at 406. We held that it did
not absent clear congressional intent. Id. at 410. We reasoned that
“[e]xtending the statute of limitations” for antecedent conduct
would upset settled expectations and fail to protect reasonable
reliance interests because it would “ ‘increase[] a defendant’s
liability for past conduct’ by increasing the period of time during
which a defendant can be sued.” Id. (brackets and citation
omitted) (quoting Landgraf, 511 U.S. at 280). We found that
observation to be “particularly prevalent” where the extended
statute of limitations revived claims that were fully extinguished
under the prior statute. Id.; see also Stogner, 539 U.S. at 618
(noting the “general rule” that “where a complete defense has
arisen under a statute of limitations, it cannot be taken away by a
subsequent repeal thereof” (brackets omitted))).
This case differs from both Vernon and Enterprise. Unlike
Vernon, in which the new statute shortened the old filing period,
the 2003 amendment to § 3283 extended the filing period for
applicable sex abuse charges. And unlike Enterprise, in which
applying the new statute retroactively would have revived an
expired claim, the 2003 amendment to § 3283 extended the filing
period for charges against Weingarten that had not yet expired
16
when the amendment was passed, since Doe turned twenty‐two
in 2003. Had Weingarten raised this retroactivity argument in his
motion to dismiss, the District Court may have needed to
determine, without any controlling Circuit or Supreme Court
precedent, whether the logic of Enterprise extends to criminal
cases where the defendant’s statute of limitations defense had
not vested when the limitations period was extended.
As at the first step of Landgraf, Weingarten may have been
able to make colorable arguments that Enterprise does extend
that far. He could have argued that a statute that retroactively
extends the limitations period for viable claims also “increas[es]
the period of time during which a defendant can be sued,”
thereby “increas[ing] a defendant’s liability for past conduct.”
See Enterprise, 391 F.3d at 410 (brackets omitted) (quoting
Landgraf, 511 U.S. at 280). Perhaps counsel could have convinced
the District Court that increasing a statute of limitations expands
the time when criminal charges may be filed regardless of the
viability of the claim at the time the statute of limitations is
amended.7
On the other hand, retroactively revoking a vested statute
of limitations defense is different from retroactively extending
the filing period for a still‐viable claim. The vast weight of
retroactivity decisions at the time of the motion to dismiss in this
case support that view. Courts have routinely recognized a
difference between revoking a vested statute of limitations
defense and extending a filing period for live claims. See, e.g.,
Hughes Aircraft, 520 U.S. at 950 (“[E]xtending a statute of
limitations after the pre‐existing period of limitations has
7 At least one court, in a decision that post‐dates the motion to dismiss
at issue on this appeal, has reached this conclusion. Abarca v. Little, 54
F. Supp. 3d 1064, 1069 (D. Minn. 2014).
17
expired impermissibly revives a moribund cause of action . . . .”);
Margolies v. Deason, 464 F.3d 547, 553 (5th Cir. 2006) (limiting
holding to expired claims without directly addressing viable
claims); In re ADC Telecomms., Inc. Sec. Litig., 409 F.3d 974, 977 &
n.2 (8th Cir. 2005) (“[A] retroactive extension of a statute of
limitations and revival of stale claims through retroactive
application of a statute of limitations are different.”); Chenault v.
U.S. Postal Serv., 37 F.3d 535, 538 (9th Cir. 1994) (“[W]e have
recognized that a statute of limitations may not be applied
retroactively to revive a claim that would otherwise be stale
under the old scheme . . . .”); cf. Stogner, 539 U.S. at 618 (“Even
where courts have upheld extensions of unexpired statutes of
limitations . . . , they have consistently distinguished situations
where limitations periods have expired.”). Had Weingarten
prevailed on this retroactivity theory, the District Court would
have been the first court to hold that retroactively extending a
filing period for live charges is a presumptively impermissible
retroactive effect under Landgraf. That novel holding would have
been in direct conflict with a 2006 decision of the Ninth Circuit
that held the same 2003 amendment to § 3283 applied
retroactively to extend a filing period for charges that were still
viable at the time of the amendment. See United States v. Leo Sure
Chief, 438 F.3d 920, 924 (9th Cir. 2006).8
The state of authority on this issue shows that it was not
clear at the time of Weingarten’s motion to dismiss whether the
2003 version of § 3283 applied retroactively to extend a filing
period for live charges. But because Weingarten failed to raise
this complex issue in the first instance, it is not our place on this
appeal to resolve it definitively. Rather, we hold that Weingarten
8 After Weingarten’s motion to dismiss, the Fourth Circuit reached a
similar conclusion as the Ninth Circuit. Cruz v. Maypa, 773 F.3d 138,
145 (4th Cir. 2014).
18
is not entitled to § 2255 relief on this theory because, given the
lack of controlling authority on this difficult issue, Weingarten’s
retroactivity argument was not so obvious that it was objectively
unreasonable for his trial counsel to forgo it in favor of others.
The underlying merits question remains for another day, another
case.
2.
Weingarten contends in the alternative that trial counsel
clearly should have argued that the default five‐year § 3282
limitations period, rather than the extended § 3283 limitations
period, applies to prosecutions for § 2423 offenses. Section 3283
applies to any “offense involving the sexual . . . abuse . . . of a
child.” Weingarten argues Congress’s use of the words “offense
involving” compels courts to apply the categorical approach to
determine whether § 3283 applies to a particular federal offense.
See Descamps v. United States, 133 S. Ct. 2276, 2281 (2013) (“[T]he
‘categorical approach’ . . . compare[s] the elements of the statute
forming the basis of the defendant’s conviction with the
elements of the ‘generic’ crime . . . .”). He asserts that § 2423
offenses do not qualify categorically as “offense[s] involving the
sexual . . . abuse . . . of a child” because they are crimes of intent,
which do not require proof of actual sexual abuse to sustain a
conviction. See United States v. Broxmeyer, 616 F.3d 120, 130 n.8
(2d Cir. 2010); United States v. Han, 230 F.3d 560, 563 (2d Cir.
2000). Therefore, Weingarten concludes, even though his offense
conduct in fact involved sexual abuse of a child, the charges
against him were not subject to the extended § 3283 limitations
period.
19
It was not obvious at the time of Weingarten’s motion to
dismiss, nor is it today,9 that a court must apply the categorical
approach, rather than a fact‐specific analysis, to determine
whether an offense is subject to § 3282 or § 3283. As an initial
matter, it is far from clear the categorical approach applies in the
context of criminal statutes of limitations for child sex abuse
cases. The Supreme Court’s modern categorical approach
jurisprudence is confined to the post‐conviction contexts of
criminal sentencing and immigration deportation cases. See
Descamps, 133 S. Ct. at 2288 (explaining that the categorical
approach avoids “serious Sixth Amendment concerns” under
Apprendi v. New Jersey, 530 U.S. 466 (2000), that arise when a
judge would make a post‐conviction finding regarding
underlying factual predicate). Weingarten cites no recent case
law for the proposition that the categorical approach applies
outside the post‐conviction context.10
9 See United States v. Schneider, 801 F.3d 186, 195–97 (3d Cir. 2015)
(declining to apply the categorical approach to decide whether a
§ 2423(b) offense falls under § 3283).
10 Weingarten’s sole support outside the sentencing and immigration
contexts is Bridges v. United States, 346 U.S. 209 (1953), in which the
Supreme Court applied an “essential ingredient” test to determine
whether an offense qualified for a provision in the Wartime
Suspension of Limitations Act (the “WSLA”) that extended the
criminal limitations period for certain fraud offenses. Id. at 222.
Weingarten provides no support for his contention that the “essential
ingredient” test and the categorical approach are the same. In any
event, Bridges is distinguishable. The Court there believed applying the
restrictive “essential ingredient” test to determine if an offense
“involv[ed] the defrauding of the United States” effectuated
Congress’s specific intent to limit the WSLA’s extended limitations
period to only a few offenses. Id. at 215–16 (“The legislative history of
[the WSLA] emphasizes the propriety of its conservative
20
Even if the categorical approach does apply outside of the
sentencing and immigration contexts, it was and is not clear that
§ 3283 calls for it. Taylor v. United States, 495 U.S. 575 (1990),
established the modern doctrine for when to apply the
categorical approach. Taylor held that 18 U.S.C. § 924(e)—a
provision of the Armed Career Criminal Act that enhanced
sentences for felons in possession of firearms in violation of 18
U.S.C. § 922(g) who were previously convicted of certain
predicate offenses—required courts to apply the categorical
approach for three reasons: (1) the language of § 924(e) referred
to previous “convictions” rather than previous offenses a person
“has committed,” which indicated that Congress was focused on
the legal charges rather than the underlying conduct; (2) the
legislative history of the provision revealed Congress favored a
categorical approach for defining § 924(e) predicate offenses; and
(3) applying a fact‐based approach to § 924(e) posed “daunting”
“practical difficulties and potential unfairness.” 495 U.S. at 600–
02; see also Descamps, 133 S. Ct. at 2287–89 (describing “three
grounds for establishing [an] elements‐centric, ‘formal
categorical approach’ ”).
None of these conditions is met here. First, unlike § 924(e),
§ 3283 refers to offenses that “involv[e]” certain abusive conduct,
rather than certain convictions. Leocal v. Ashcroft, 543 U.S. 1
(2004), stands as another counter‐example. The Leocal Court
applied the categorical approach to a statute that defined
whether a prior conviction qualified as a “crime of violence” by
referring to the prior “offense,” the “element[s]” of that offense,
and the “nature” of that offense. Id. at 7 (quoting 18 U.S.C. § 16)
(emphasis omitted). The language of § 3283, by contrast, reaches
beyond the offense and its legal elements to the conduct
interpretation.”). As explained below, Congress had the opposite
intention for § 3283.
21
“involv[ed]” in the offense. That linguistic expansion indicates
Congress intended courts to look beyond the bare legal charges
in deciding whether § 3283 applied.11
Second, Weingarten points to nothing in the legislative
history of § 3283 that indicates Congress favored the categorical
approach. To the contrary, in passing recent statutes related to
child sex abuse, including extensions of the § 3283 limitations
period, Congress “evinced a general intention to ‘cast a wide net
to ensnare as many offenses against children as possible.’ ”
Schneider, 801 F.3d at 196 (quoting United States v. Dodge, 597
F.3d 1347, 1355 (11th Cir. 2010) (en banc)). It would undermine
that intention to apply the narrow categorical approach.
Third, it would present no practical difficulty or
unfairness to apply a fact‐based approach to § 3283. The Taylor
Court was concerned that looking into the factual predicate of
prior convictions, which could have been procured by guilty
plea or by general jury verdict on multiple alternative theories of
criminal liability, would pose too great an obstacle for a court
sentencing a defendant for a later § 922(g) conviction. 495 U.S. at
601–02. A district court or jury reviewing a § 3283 statute of
limitations defense would have no such difficulty. All they
would be required to do is decide whether the indictment
alleged or the Government proved at trial that the defendant
11 That Congress used the word “involving” in § 3283 does not
necessarily mean it intended to trigger the categorical approach.
“Involving” may be “entirely consistent” with applying the categorical
approach, Olivas‐Motta v. Holder, 746 F.3d 907, 915 (9th Cir. 2013), but
it is equally consistent with applying a fact‐based approach, see
Nijhawan v. Holder, 557 U.S. 29, 38 (2009) (holding a statute that
includes as an “aggravated felony” certain “offense[s] that . . .
involve[] fraud or deceit” mandates “a circumstance‐specific
approach” (quoting 8 U.S.C. § 1101(a)(43)(M)(i))).
22
engaged in applicable abusive conduct. That would not
implicate the problematic retrospective factual findings that
concerned the Taylor Court.
Accordingly, it was not obvious that the categorical
approach applied to § 3283.
CONCLUSION
The District Court’s order of March 8, 2016 denying
Weingarten’s § 2255 petition insofar as it pertains to the statute
of limitations defense is AFFIRMED.
23