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B. 
Masha's Law Does Not Apply To This Case. 
The presumption against retroactivity and the Ex Post Facto clause preclude application 
of Masha's Law in this case, where the alleged predicate conduct was completed before 2006. 
1. 
Congress Dld Not Intend To Apply Masha's Law Retroactively. 
It is axiomatic that "retroactivity is not favored," Bowen'. Georgetown Univ. Hosp., 488 
U.S. 204, 208 (1988), and the "traditional presumption teaches that [an amended statute) does 
not govern absent clear congressional intent favoring such a result." Lanchtraf I. USI Film 
Prods. 511 U.S. 244, 280 (1994). As the Supreme Court has explained, this presumption 
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 
expectations should not be lightly disrupted. For that reason, the "principle that 
the legal effect of conduct should ordinarily be assessed under the law that existed 
when the con uct took place has timeless and universal appeal." Kaiser Alum. & 
trt Corp 
. B 
mo 494 U.S. 827, 855 (1990) (Scalia, J., concurring). 
Id. at 265 (footnote omitted). Courts therefore apply the statute in effect at the time of the 
underlying conduct unless there is a clear statement that an amendment should apply 
retroactively to pre-enactment conduct. See, e.g., Hughes Aircraft Co.', United States ex rel. 
Schumer 520 U.S. 939, 952 (1997) ("Given the absence of a clear statutory expression of 
congressional intent to apply the 1986 amendment to conduct completed before its enactment, 
we ... hold that, under the relevant 1982 version of the [statute), the District Court was obliged 
to dismiss this action."). 
There is no clear indication that Congress intended Masha's Law to apply retroactively. 
Unlike the many cases in which Congress has specified that a particular amendment applies in 
proceedings "commenced on or after the date of enactment," Tello I. Dean Witter Reynolds 
ke„ 410 F.3d 1275, 1283 (1 lth Cir. 2005) (collecting examples), Masha's Law was subject only 
to a standard effective date provision that sheds no light on its retroactivity. See Landkraf, 511 
U.S. at 1493 ("A statement that a statute will become effective on a certain date does not even 
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arguably suggest that it has any application to conduct that occurred at an earlier date."). 
Far more important, the only expression of congressional intent regarding retroactivity 
strongly suggests that Congress did not intend Masha's Law to apply retroactively. As set forth 
above, Masha's Law was enacted as part of the Adam Walsh Act. The centerpiece of that Act 
was an expanded sex-offender registry ("SORNA") intended to bolster tracking of convicted sex 
offenders. See Pub. L. 109-248 §§ 1-155, 120 Stat. 587, 590-611 (2006). To effectuate SORNA, 
Congress provided that offenders must register "before completing a sentence of imprisonment 
with respect to the offense giving rise to the registration requirement, or not later than 3 business 
days after being sentenced" if no prison term was imposed. 42 U.S.C. § 16913(b). It also 
imposed penalties on offenders who fail to register. See 18 U.S.C. § 2250(a). At the same time, 
and of particular relevance in this case, Congress recognized that applying SORNA to past 
offenders would raise retroactivity concerns. It therefore addressed retroactivity expressly: 
The Attorney General shall have the authority to specify the applicability of the 
requirements of this subchapter to sex offenders convicted before July 27, 2006 or 
its implementation in a particular jurisdiction, and to prescribe rules for the 
registration of any such sex offenders. 
42 U.S.C. § 16913 (d). 
While Congress clearly provided that SORNA could be applied retroactively, it did not 
do so with respect to Masha's Law. As the Supreme Court and the Eleventh Circuit have long 
observed, "'where Congress includes particular language in one section of a statute but omits it 
in another section of the same Act, it is generally presumed that Congress acts intentionally and 
purposefully in the disparate inclusion or exclusion." United States I. lordm, 915 F.2d 622, 
628 (11th Cir. 1990) (quoting Rodriguez,. United States, 480 U.S. 522, 525 (1987) (itself 
quoting Russell° I. United States 464 U.S. 16, 23 (1983))). There is no basis for departing from 
that rule. Given the strong evidence that Congress did not intend retroactively to apply Masha's 
Law, the 2003 version of § 2255 supplies the governing law. 
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2. 
The Ex Post Facto Clause Bars Application Of Masha's Law. 
Even if Congress did intend Masha's Law to apply retroactively, doing so would violate 
the Ex Post Facto clause. U.S. CONST. art. 1, § 9, cl. 3. As the Eleventh Circuit has explained: 
[The] Constitution provides that "[Mt) Bill of Attainder or ex 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 "'applies to events occurring before its enactment and 
disadvantages the offender affected by it' by altering the definition of criminal 
conduct or increasing the punishment for the crime." Lynce I. Mathis 519 U.S. 
433, 441 (1997) (quoting Weaver,. Graham 450 U.S. 24, 29 (1981)). 
United States'. Sim!, 153 F.3d 1256, 1259 (11th Cir. 1998) (emphasis added; internal 
alterations omitted). Even though this case nominally involves a civil cause of action, the Ex 
Post Facto Clause is triggered both because Masha's Law dramatically increased the penalties 
for predicate criminal violations and because its retroactive application would revive 
Defendant's exposure to penalties that previously had become barred as a matter of law. 
a. 
Retroactive Application Of Masha's Law Would Increase The 
Penalties For Violating The Predicate Criminal Statutes. 
While the 2003 statute provided that "[a]ny minor ... shall be deemed to have sustained 
damages of no less than $50,000," 18 U.S.C. § 2255 (2003) (emphasis added), Masha's Law 
trebles the minimum statutory damages by providing that plaintiffs "shall be deemed to have 
sustained damages of no less than $150,000." Id. (2006) (emphasis added). As a result, the 
enhanced monetary penalties provided by Masha's Law "increas[e] the punishment for the 
crime," Lynce, 519 U.S. at 441, and make "the punishment for crimes committed before its 
enactment 'more onerous"' than the punishment would have been under the unamended statute. 
Id. at 442 (quoting Weaver, 450 U.S. at 36). Those penalties are the direct consequence of a 
defendant's commission of a predicate criminal offense and form a deliberate part of the 
punishment for that crime. See, e.g., 134 Cong. Rec. S372-01 (Feb. 1, 1998) (statement of Sen. 
Grassley) ("rifle sanctions provided for in my bill, such as ... the amended civil remedy section 
... provide much needed criminal enforcement tools.") (emphasis added); 152 Cong. Rec. 
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S8012-02 at S8016 (July 20, 2006) (statement of Sen. Kerry) ("[Masha's Law) raises from 
$50,000 to $150,000 the penalty ... if, in fact, someone ... is caught and convicted.") (emphasis 
added). Accordingly, Masha's Law cannot lawfully be applied in this case. 
The Eleventh Circuit's decision in United States I, Siegel 153 F.3d 1256 (11th Cir. 
1998), is virtually on point. In Siegel, the defendant pleaded guilty to charges under 18 U.S.C. 
§ 371 and § 1956(a)(1XA) that arose out of actions taken he took between February 1, 1988 and 
May 1, 1990. Id. at 1259. Under the restitution statute in effect when the crimes were 
committed ("VWPA'), courts had discretion "to order `that the defendant make restitution to any 
victim of the offense." Id. at 1259 (citing 18 U.S.C. § 3663 (1985)). But that discretion was 
limited: "In exercising this discretion, the court was required to consider `the amount of the loss 
sustained by any victim as a result of the offense, the financial resources of the defendant, the 
financial needs and earning ability of the defendant and the defendant's dependents, and such 
other factors as the court deems appropriate,' before fixing the amount of the restitution, if any, 
that the defendant was required to pay." Id. at 1260 (citing 18 U.S.C. § 3664(a) (1985)). 
Before Siegel pleaded guilty in July 1996, Congress passed the Mandatory Victims 
Restitution Act ("MVRA"). Id. at 1258-59 (citing Pub. L. No. 104-132, § 211). That law 
mandated the award of full restitution without regard to the defendant's economic circumstances. 
Id. at 1260. Congress expressly made those changes "effective for sentencing proceedings in 
cases in which the defendant is convicted on or after April 24, 1996." Id. at 1258 (quoting 
statute; alteration omitted). The district court applied MVRA at Siegel's sentencing and ordered 
him to pay restitution totaling $1,207,000 without considering his inability to do so. Id. at 1258. 
The Eleventh Circuit reversed, holding that MVRA "cannot be applied to a person whose 
criminal conduct occurred prior to [its effective date)." Id. at 1260. It explained: 
At the time [of sentencing), the amended VWPA thus had the potential to increase 
the amount of restitution they would have to pay, from an amount set by the court 
by taking into account appellants' financial circumstances, to full restitution. 
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Accordingly, if the court determines that the VWPA should apply to this case, it 
must use the old version to avoid running afoul of the Ex Post Facto Clause. 
Id. (quoting United States,. Baggett, 125 F.3d 1319, 1322 (9th Cir. 1997)). 
This case is indistinguishable from Siegel. As in Siegel, Masha's Law caused "a 
substantive change ... to [defendantrs detriment," by trebling the minimum statutory penalty 
payable to the victim of a predicate crime. Id. at 1260. As in Siegel, Masha's Law thus has "the 
potential to increase the amount of restitution [defendants] would have to pay" to victims of a 
predicate crime. Id. Accordingly, and as in Siegel, Masha's Law cannot be applied where the 
predicate criminal conduct allegedly occurred prior to the amended statute's effective date. 
It is no answer that the law at issue in Siegel provided "restitution" to the victim of a 
criminal offense while this statute provides "damages" to the victim of a criminal offense; by 
definition, damages paid by an offender to the victim of a criminal offense are restitution. See 
Black's Law DIet. (8th ed. 2004) (defining restitution as "[c]ompensation for loss; esp., full or 
partial compensation paid by a criminal to a victim."). Indeed, the case for applying ex post 
facto principles is even stronger here than in Siegel: While MVRA mandated the award of actual 
damages to the victim, Masha's Law mandates the payment of at least $150,000 to the victim 
even if the victim did not actually sustain $150,000 in damages. See 18 U.S.C. § 2255 (2006) 
("My [victim] shall be deemed to have sustained damages of no less than $150,0001n value.") 
(emphasis added). Given its obviously penal nature, there is little wonder why Senator Kerry 
repeatedly described Masha's Law as increasing "the penalty" for persons convicted of a 
predicate crime. 152 Cong. Rec. 58012-02, S8016 (July 20, 2006) (statement of Sen. Kerry). 
Because applying the 2006 amendments would increase the punishment for violating a 
predicate criminal statute, Masha's Law cannot lawfully be applied in this case. 
b. 
Retroactively Applying Masha's Law Impermissibly Would 
Revive Defendant's Exposure To Previously Barred Penalties 
For His Alleged Violation Of The Predicate Criminal Statutes. 
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Perhaps more important, the Ex Post Facto clause precludes application of Masha's Law 
here because it would revive Defendant's exposure to penalties that previously had become 
barred by operation of law—no matter their amount. As set forth above, the 2003 statute 
allowed only "minors" to file suit. Because Plaintiff was 17 when the predicate offenses 
allegedly were committed, she could have sought the statutory penalty under the 2003 version of 
§ 2255. Once Plaintiff turned 18, however, she lost her ability to sue. That extinguished 
Defendant's exposure to penalties for his alleged crimes. Applying Masha's Law thereby would 
revive Defendant's exposure to penalties in direct contravention of the Ex Post Facto clause. 
The Supreme Court's decision in California 
Stogner 539 U.S. 607 (2003), perfectly 
illustrates the point. In Stegner, the defendant was charged in 1998 based on sex crimes that he 
allegedly committed between 1955 and 1973. While the original three-year statute of limitations 
for those offenses long had lapsed, a California law purported to "revive" stale claims by 
authorizing the filing of charges within one year of a new police report alleging past child sexual 
abuse. 539 U.S. at 609-10 (discussing Cal. Penal Code Ann. § 803(g) (2003)). The defendant 
moved unsuccessfully to dismiss the indictment, and later appealed to the Supreme Court. 
That Court reversed, explaining that "the new statute threatens the kinds of harm that ... 
the Ex Post Facto Clause seeks to avoid," because its revival of previously barred claims would 
subject the defendant to penalties for criminal conduct "after the State has assured 'a man that he 
has become safe from its pursuit,"' and thus would "deprive the defendant of the 'fair warning' 
that might have led him to preserve exculpatory evidence." 539 U.S. at 611 (quoting Falter t 
United States 23 F.2d 420, 426 (2d Cir. 1928) (Hand, J.) and Weaver 450 U.S. at 28). More 
important, the Court observed, California's revival of otherwise barred claims fell squarely 
within a category of ex post facto laws condemned by the Supreme Court's seminal ex post facto 
decision, Calder'. Bull—namely, laws providing for "punishments, where the party was not, by 
law, liable to any punishment." Id. at 612 (quoting Calder, 3 Dail. 386, 391 (1798)). 
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The second category—including any "law that aggravates a crime, or makes it 
greater than it was, when committed," describes California's statute as long as 
those words are understood as Justice Chase understood them—i.e., as referring to 
a statute that "inflict[s] punishments, where the party was not, by law, liable to 
any punishment." After (but not before) the original statute of limitations had 
expired, a party such as Stogner was not "liable to any punishment." California's 
new statute therefore "aggravated" Stogner's alleged crime, or made it "greater 
than it was, when committed," in the sense that, and to the extent that, it "inflicted 
punishment" for past criminal conduct that (when the new law was enacted) did 
not trigger any such liability. 
Id. at 613 (quoting Calder, 3 DaII. at 391) (internal citations omitted). The Court held that the 
Post Facto clause precludes the revival of claims predicated on past crimes. 
The precise concerns animating Stogner are present in this case. 
As in Stogner 
Defendant was "liable to punishment" under § 2255 before Plaintiff turned 18, but once she 
attained that age, he no was longer "liable to punishment" under § 2255 for his alleged 
commission of the predicate crimes against her. And as in Stegner, retroactively applying 
Masha's Law in a manner that would revive Defendant's exposure to statutory penalties would 
"aggravate" his alleged crimes "in the sense, and to the extent that, it 'inflicted punishment' for 
past criminal conduct that (when the new law was enacted) did not trigger any such liability." 
Id. (quoting Calder 3 Dail. at 391). At bottom, then, well-settled retroactivity and ex post facto 
principles preclude application of Masha's Law to Defendant's alleged pre-enactment conduct. 
C. 
The FAC Must Be Dismissed Because Plaintiff Concededly Is Not A Minor. 
As the FAC makes clear, Plaintiff was 17 in the spring of 2003, and she thus was either 
22 or 23 when she filed this suit in April 2009. MC ¶ 18. Because Masha's Law cannot 
lawfully be applied to the alleged conduct in this case, and because the prior statute provided that 
only "minors" may sue, the FAC must be dismissed with prejudice. 
II. 
THE FAC MUST BE DISMISSED BECAUSE DEFENDANT HAS NOT BEEN 
CONVICTED OF A PREDICATE OFFENSE. 
Even if Plaintiff were entitled to maintain this suit—and without regard to which version 
of § 2255 applies—the MC still would fail as a matter of law because it does not (and cannot 
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consistent with Rule 11) allege that Defendant is guilty of "a violation" of a predicate statute. 
See 18 U.S.C. § 2255(a) (2003 & 2006) (plaintiff must be "a victim of a violation of [certain 
federal statutes]"). As set forth below, the plain text of the statute and its legislative history 
demonstrate that § 2255 is conditioned on a prior federal conviction. Because Defendant has 
never been convicted of a predicate federal offense, the FAC must be dismissed. 
A. 
The Statute Requires Proof Of A Prior Federal Conviction. 
By its plain terms, § 2255 only permits "a victim of a violation" of certain federal 
criminal statutes to seek statutory penalties. See 18 U.S.C. § 2255(a) (2003 & 2006). Given the 
presumption of innocence that animates our system of criminal justice, Congress's reference to 
"a victim of a violation" of a criminal statute can only be interpreted to require proof that the 
defendant has been convicted of a predicate federal offense against the plaintiff After all, an 
individual accused of "violating" a criminal statute is deemed innocent until proven guilty 
beyond a reasonable doubt. It would turn that principle upside down if plaintiffs could sue in the 
absence of an antecedent criminal conviction. Given that "Congress is understood to legislate 
against a background of common-law adjudicatory principles," Astoria Fed. Say. & Loan Assn. 
Solimino 501 U.S. 104, 108 (1991), 'the courts may take it as given that Congress has 
legislated with an expectation that the principle will apply except 'when a statutory purpose to 
the contrary is evident."' Id. (quoting Jsbrandtsen Co. I. Johnson, 343 U.S. 779, 783 (1952)). 
In this case, however, the Court need not take anything "as given." Even if the statute's 
language were not clear—which it is—§ 2255's legislative history confirms that Congress 
intended to require a prior criminal conviction. While the history accompanying the passage of 
the original 1986 statute is sparse—§ 2255 was inserted with little debate into an omnibus 
appropriations bill for 1987, see Pub. L. No. 99-500, 100 Stat. 1783 (1986)—the 1998 and 2006 
extensions of § 2255 produced clear statements regarding Congress's intent. In 1998, for 
instance, Congress added additional predicate statutes to § 2255. Senator Grassley, who wrote 
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the amendments, explained that "the sanctions provided for in my bill, such as ... the amended 
civil remedy section [would] provide much needed criminal enforcement tools" against 
convicted offenders. 134 Cong. Rec. 5372-01 (Feb. 1, 1998) (statement of Sen. Grassley). Not 
surprisingly, the House Report accompanying that legislation used classic terms associated with 
an adjudicated conviction in order to make clear that the bill targeted those convicted of the 
predicate crimes: "It is the intention of the Committee that only the offender who perpetrated 
the offense against the minor is liable for damages under this section." H.R. Rep. 105-557, P.L. 
105-314: Protection of Children From Sexual Predators Act of 1998, at 23 (emphasis added). 
The legislative history of Masha's Law is even more explicit: 
What Masha's law does, and what is incorporated in here, is it ... makes sure that 
recovery on the part of a minor can take place when they become an adult, 
whether or not the guilty person is incarcerated. It raises from $50,000 to 
$150,000 the penalty for which that individual can be recompensated if, in fact, 
someone who depicts that picture and puts it on the Internet and uses them is 
caught and convicted. 
152 Cong. Rec. S8012-02 at S8016 (July 20, 2006) (statement of Sen. Kerry). These references 
could hardly be clearer: for the statute to apply, the defendant must be arrested, tied, and found 
"guilty"—the "penalty" is available only "if, in fact, someone ... is caught and convicted." Id. 
As noted above, courts give special weight to the statements of a bill's sponsor. Corlev 129 
S.Ct. at 1569. Given these clear statements from Senator Kerry, the only plausible conclusion is 
that § 2255 requires proof of an antecedent criminal conviction. 
That having been said, we do recognize that two district courts have held that plaintiffs 
may pursue a § 2255 action even without a prior conviction, Smith I. Husband, 376 F. Supp. 2d 
603 (E.D. Va. 2005); Doe I. Liberatore 478 F. Supp. 2d 742 (E.D. Pa. 2007). But with due 
respect, these decisions overlook the relevant legislative history set forth above and rely instead 
on legislative history that is at best inapposite, and at worst irrelevant. In particular, Smith and 
Liberatore (which itself rested entirely on Smith) hinge on two pieces of legislative history 
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relating to unenacted drafts of the legislation. See Smith, 376 F. Supp. 2d at 610-12; Liberatore 
478 F. Supp. 2d at 754-55. 
First, both courts found it significant that § 2255 initially was proposed as an amendment 
to the civil RICO statute, and in particular that an early draft of the legislation allowed "[a]ny 
person injured (1) personally by reason of a violation of [RICO] if such injury results from an 
act Indictable under sections 2251 and 2252 of this title (relating to sexual exploitation of 
children) ... [to] sue therefor." Smith 276 F. Supp. 2d at 611 (quoting 132 Cong. Rec. E1983-01 
(June 5, 1986) (statement of Rep. Siljander during extension of remarks)); Liberatore, 478 F. 
Supp. 2d at 755 (relying on Smith, 276 F. Supp. 2d at 611). As Smith concluded, "[t]his 
language ... indicates that it was not Congress's intent that a conviction under the other sexual 
exploitation statutes be a prerequisite to the initiation of a civil suit for damages," because the 
draft bill grounded the cause of action on "'an act indictable' under the statute" instead of one 
that actually produced an indictment and conviction. Smith, 276 F. Supp. 2d at 612. 
Smith's analysis draws precisely the wrong conclusion from this unenacted draft 
language. After all, the law Congress actually passed did not contain the language on which 
Smith and Liberatore relied. Instead, it allowed only by minors injured by an actual "violation" 
of the predicate statutes to sue—not those who merely alleged that a defendant could have been 
indicted (but was neither indicted nor convicted) for conduct that allegedly breached those 
statutes. It is odd to treat the removal of language from draft legislation as proof that the enacted 
bill carried the same meaning. Instead, courts draw the opposite inference. F.ussello 464 U.S. at 
23-24 ("Where Congress includes limiting language in an earlier version of a bill but deletes it 
prior to enactment, it may be presumed that the limitation was not intended."). 
Smith and Liberatore also relied on excerpts from a CRS report analyzing another early 
draft of the legislation. Smith, 376 F. Supp. 2d at 611 (citing 132 Cong. Rec. E3242-02 (Sept. 
23, 1986) (statement of Rep. Green during extension of remarks)); see also Liberatore, 478 F. 
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Supp. 2d at 755 (citing Smith). According to Smith, the CRS report stated that "violations are to 
be determined by a preponderance of the evidence. Successful plaintiffs are entitled to recover 
the cost of the suit, including a reasonable attorney's fee, from those found guilty of a violation." 
Id. (quoting 132 Cong. Rec. 83242-02 (Sept. 23, 1986)). smith thus held that "[t)he analysis of 
that proposed draft indicated that a violation under § 2255 was to be proven only by a 
preponderance of the evidence," and "indicates that 18 U.S.C. § 2255 was intended to provide a 
remedy ... without requiring a criminal conviction." Id. at 611-12. 
Set aside that Congress eventually deleted from the bill the preponderance-of-the-
evidence standard discussed in the CRS report; while that alone renders this portion of the CRS 
report irrelevant, the key point here is that Smith's analysis of the report is flawed on its own 
terms. To begin with, the fact that draft's proposed preponderance-of-the-evidence standard 
does not remotely prove that Congress sought to permit § 2255 actions in the absence of a 
predicate criminal conviction. To the contrary, requiring a prior criminal conviction is perfectly 
consistent with such a standard, since the plaintiff in a § 2255 case could simply introduce proof 
of the prior conviction and thereby discharge her burden of proving a violation under a 
preponderance-of-the-evidence standard. As a result, the (never adopted) preponderance-of-the-
evidence standard on its own sheds no light on the question. 
Moreover, the Smith court overlooked the key line in its quotation from the CRS report—
namely, the report's statement that the draft version of § 2255 would allow plaintiffs to recover 
penalties from "'those found guilty of a violation." Smith, 376 F. Supp. 2d at 611 (emphasis 
added) (quoting 132 Cong. Rec. 83242-02 (Sept. 23, 1986) (statement of Rep. Green during 
extension of remarks)). Needless to say, civil courts do not find defendants "guilty"—only 
criminal courts do. 
On this point, the report's explicit reference to adjudicated guilt in 
connection with the statute's use of the term "violation" provides clear and obvious evidence that 
Congress intended to require proof of a criminal violation as a precondition to suit. 
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Finally—and perhaps most important—Smith's selective quotation from the CRS report 
omitted key language showing Congress's intent to require proof of an antecedent criminal 
conviction. Quoted in its entirety, the relevant portion of the CRS report explained: 
For purposes of this section, violations are to be determined by a preponderance 
of the evidence. Successful plaintiffs are entitled to recover the cost of the suit, 
including a reasonable attorney's fee, from those found guilty of a violation. 
Proposed § 2250(d) states that a defendant found guilty in any criminal 
proceeding brought by the United States under this chapter is estopped from 
denying the essential allegations of the criminal offense in any subsequent civil 
proceeding. 
Since the standard of proof in criminal cases, "beyond a 
reasonable doubt," is stronger than the "preponderance of the evidence" 
standard contained in proposed § 2255, this relieves the plaintiff from having to 
establish those facts which have already been proven under a higher standard 
of proof in a finalized criminal proceeding. 
132 Cong. Rec. E3242-02 (Sept. 23, 1986) (statement of Rep. Green) (emphasis added). 
As the omitted language makes clear, the whole point of the proposed preponderance-of-
the-evidence standard was that it would work hand-in-glove with the draft legislation's estoppel 
provision in order to ensure that plaintiffs would not have to replicate proof of guilt after the 
defendant was convicted in a prior criminal case. Thus, to the extent the draft bills that 
eventually led to § 2255 have any bearing on the meaning of the language that Congress actually 
enacted, the legislative history relied upon by Smith and Liberatore makes clear that Congress 
intended to authorize a"subsequent civil proceeding" only after a defendant had been convicted 
"beyond a reasonable doubt ... in afinalized criminal proceeding." Id. (emphasis added). 
At bottom, the plain text and legislative history clearly show that § 2255 authorizes an 
action only after the defendant has been convicted of violating a predicate criminal statute. 
B. 
Defendant's Plea To Certain State-Law Offenses Is Insufficient To Authorize 
Suit Under 18 U.S.C. § 2255. 
The FAC seeks to overcome this hurdle by asserting that Defendant "entered pleas of 
'guilty' to various Florida state crimes involving the solicitation of minors for prostitution and 
the procurement of minors for the purposes of prostitution [and therefore) is in the same position 
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as if he had been tried and convicted of the sexual offenses committed against Plaintiff and, as 
such, must admit liability unto Plaintiff." FAC 124. While it generally is true that a complaint's 
allegations must be taken as true, "unwarranted deductions of facts or legal conclusions 
masquerading as facts will not prevent dismissal." Oxford Asset Mgnt.. Ltd.'. Jaharis, 297 F.3d 
1182, 1188 (11th Cir. 2002). Courts likewise may take note of public-record materials subject to 
judicial notice—even if those materials were not attached to the Complaint. N. (citing cases). 
The key point, then, is that Defendant's plea to two single-count charges under Florida 
law (one involving solicitation of prostitution — without regard to the prostitute's age — and one 
involving procurement of a minor for prostitution) does not remotely establish that Defendant 
committed any offense against Plaintiff much less that Defendant was convicted of violating 
any predicate federal statute that can give ground liability under § 2255. The official Florida 
judgment of conviction contains no reference to Plaintiff. See Exh. A. The official transcript of 
Defendant's plea colloquy makes clear that the state-law offenses to which he pleaded guilty 
took place in 2004 and 2005—years after the events alleged to give rise to this case. 
THE COURT: State, please give me a factual basis. 
MS. BELOHLAVEK: In 069454 CF AMB, between August 1, 2004 and October 
31, 2005, the defendant in Palm Beach County did solicit or procure someone to 
commit pros[titution] on three or more occasions. And in 08 CF 9381 CF AMB 
between August 1, 2004 and October 9, 2005, the defendant did procure a minor 
under the age of 18 to commit prostitution in Palm Beach County also. 
Exh. Bat 41-42; compare al. with FAC 118 ("Plaintiff was first brought to Defendant's mansion 
in or about the spring of 2003.") (emphasis added) and FAC 1 19 ("Defendant thereafter lured 
[Plaintiff] to [his home] on at least one and perhaps two other occasions in the spring and/or 
summer of 2003.") (emphasis added). These official records are subject to judicial notice, see, 
e.g., Cones' I. Smith, 738 F.2d 1199, 1200 (11th Cir. 1984) (citing Moore'. Estelle, 526 F.2d 
690, 694 (5th Cir. 1976)), and this Court can and should take note of them. Oxford Asset Mant. 
297 F.3d at 1188. 
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But even if Defendants' state-law pleas did involve state-law offenses against Plaintiff—
which they did not—§ 2255 only authorizes suit based on predicate convictions under certain 
federal statutes: "Any minor who is a victim of a violation of section 2241(c), 2242, 2243, 2251, 
2251A, 2252, 22524, 2260, 2421, 2422, or 2423 of this title ... may sue." 18 U.S.C. § 2255 
(2003 & 2006). Needless to say, a conviction under Florida law is not a conviction under federal 
law, and there is no basis for accepting Plaintiff's assertion that Defendant's Florida pleas put 
him "in the same position as if he had been tried and convicted of the sexual offenses committed 
against Plaintiff and, as such, must admit liability unto Plaintiff." FAC ¶ 24. To reiterate, this 
Court may not accept "unwarranted deductions of facts or legal conclusions masquerading as 
facts," Oxford Asset Mgnt, 297 F.3d at 1188 (citing Femandez-Montes 987 F.2d at 284), and 
Plaintiff's contrary assertions "will not prevent dismissal." Id. 
Because Plaintiff has not alleged—and cannot allege—that Defendant has been convicted 
of committing a predicate federal criminal offense against her, the FAC must be dismissed. 
III. 
COUNT ONE OF THE FAC MUST BE DISMISSED BECAUSE IT DOES NOT 
PLEAD A VIOLATION OF 18 U.S.C. § 2422(b). 
Count I of the FAC asserts a cause of action under IS U.S.C. § 2255 predicated on a 
claim that Defendant violated 18 U.S.C. § 2422(b). As set forth above, this Count is legally 
unsustainable for the simple reason that Defendant has never been convicted of an offense under 
18 U.S.C. § 2422(b). Supra at § II. In the alternative, Count I must be dismissed because the 
FAC does not make factual allegations that, even if true, would establish that Defendant violated 
§ 2422(b) or that Plaintiff is the victim of such a violation. That statute provides: 
Whoever, using the mail or any facility or means of interstate ... commerce ... 
knowingly persuades, induces, entice; or coerces any individual who has not 
attained the age of 18 years, to engage In prostitution or any sexual activity for 
which any person can be charged with a criminal offense, or attempts to do so, 
shall be fined under this title and imprisoned. 
18 U.S.C. § 2422(b) (2003). 
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As the statute's text makes clear, the essence of this crime is the misuse of an interstate 
facility to communicate prohibited things—that is, the using of a means or facility of interstate 
commerce to persuade, induce, entice or coerce a person known by the defendant to be a minor 
to engage in prohibited sexual conduct—rather than the sexual conduct itself. As a result, the 
communication (the inducement of a known minor to engage in prohibited sexual conduct) must 
occur through the interstate facility (the mail, phone, or intemet)—not thereafter—and the 
scienter element must be present while the facility is being used. See United States'. Murrell, 
368 F.3d 1283, 1286 (11th Cir. 2004) ("[T]he government must first prove that [Defendant], 
using the Internet, acted with a specific intent to persuade, induce, entice, or coerce a minor to 
engage in unlawful sex.") (emphasis added); United States'. 
165 Fed. Appx. 586, 588 
(10th Cir. 2006) ("[T]he government must show: '(1) use of a facility of interstate commerce; (2) 
to knowingly persuade, induce, entice, or coerce; (3) any individual who is younger than 18; (4) 
to engage in any sexual activity for which any person can be charged with a criminal offense, or 
attempting to do so.") (quoting United States', ThontaE 410 F.3d 1235, 1245 (10th Cir. 2005)). 
A simple example illustrates this point. Suppose that a "John" walks to a downtown area 
where prostitutes are known to gather. He approaches several women, and asks each one how 
old she is. The first few women state that they are 18, but eventually one states that she is 16. 
The "John" then threatens to call the police unless she has intercourse with him. She does so; he 
pays her $200 and walks away. There is no question that the "John" has knowingly solicited 
(and, indeed, coerced) prostitution from a minor in violation of state law. But there also is no 
question that the "John" cannot be convicted under 18 U.S.C. § 2422(b), because he did not use 
a facility of interstate commerce to coerce the victim: he merely talked to her in person. This 
point helps explain why the Eleventh Circuit recently noted that federal law "does not 
criminalize all acts of prostitution (a vice traditionally governed by state regulation)." United 
States,. Evans, 476 F.3d 1176, n.1 (11th Cir. 2007); see also Offense Instruction 80, Eleventh 
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Circuit Pattern Jury Instructions—Criminal (2003) (instructing jury that it must find beyond 
reasonable doubt that "the Defendant knowingly used [the mail] [a computer] [describe other 
interstate facility as alleged in indictment] to attempt to persuade, induce, entice [or coerce] an 
individual under the age of eighteen (18) to engage in sexual activity") (emphasis added). 
While the statute is unambiguous on this point, it bears note that this plain-text reading of 
the law finds additional support in the law's legislative history. Congress first enacted § 2422(b) 
as part of the Telecommunications Act of 1996 to combat sexual predators who solicit minors 
over the Internet. See H.R. Conf. Rep. No. 104.458, at 193 (1996) (expressing "the need for 
Congress to take effective action to protect children and families from online harm") (emphasis 
added); see also United States'. Searcy, 418 F.3d 1193, 1197 (Ilth Cir. 2005) (noting that 
Congress enacted § 2422(b) "after the Senate Judiciary Committee held a hearing regarding child 
endangerment via the Internet") (emphasis added). Prior to that time, § 2422 targeted only 
inducements to travel across state or national borders: "Whoever knowingly persuades, 
induces, entices or coerces any individual to travel in interstate or foreign commerce ... to 
engage in prostitution or any [criminal] sexual activity ... shall be fined under this title or 
imprisoned not more than five years, or both." 18 U.S.C. § 2422 (1995). With no nexus to use 
of an interstate instrumentality, the existing law did nothing to address the problem of intemet 
predators, whose conduct might have nothing to do with interstate or transnational travel. 
Accordingly, when Congress added § 2422(b), it borrowed the predecessor statute's 
language about knowing persuasion, and—with an eye to online communications—criminalized 
the use of an interstate facility to knowingly persuade a minor to engage in otherwise unlawful 
conduct. Congress clearly was aiming at the use of the intcmet to recruit minors into unlawful 
sexual activity—not in-person solicitation. 
See, e.g., 144 Cong. Rec. H4491-03, H4491 
(statement of Rep. McCollum) (June 11, 1998) ("H.R. 3494 targets pedophiles who stalk 
children on the Internet. It prohibits contacting a minor over the Internet for the purposes of 
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engaging in illegal sexual activity."). 
This simple point is dispositive. The FAC never alleges that Defendant "persuade[d], 
induce[d], entice[d], or coerce[d]" Plaintiff to engage in prohibited sexual conduct "using the 
mail or any facility or means of interstate or foreign commerce." 18 U.S.C. § 2422(b). It does 
not allege that Defendant ever mailed Plaintiff anything, much less that he coerced her to engage 
in prohibited sexual activity by doing so. It does not allege that Defendant ever called or text-
messaged Plaintiff, much less that he coerced her to engage in prohibited sexual activity by 
doing so. It does not allege that Defendant ever e-mailed or instant-messaged Plaintiff, much 
less that he coerced her to engage in prohibited sexual activity using any intemet technology. 
To the contrary, the MC alleges that Defendant's efforts to induce Plaintiff to engage in 
prohibited sexual conduct took place exclusively in person, without any use of an interstate 
means or facility. The FAC alleges that "in or about the spring of 2003," Plaintiff "was recruited 
by one of Defendant's agents to give Defendant a massage for compensation," and that 
Defendant's agent "drove [Plaintiff] to [Defendant's] mansion." FAC 1 18. After she allegedly 
was led to the massage room, the FAC alleges that a topless woman "with dark hair [and] an 
accent ... tried to coax Plaintiff to remove her shirt." Id. Defendant entered the room, and 
eventually asked Plaintiff to massage his buttocks. Id. He then allegedly "ordered Plaintiff to 
remove her clothes," "began masturbating and fondling her breasts," and "asked her to do more," 
but "she adamantly declined." Id. She allegedly was paid $200, and then driven away by 
Defendant's agent. Id. Plaintiff further alleges that she was "lured" to the mansion "on at least 
one and perhaps two other occasions in the spring and/or summer of 2003," but provides no 
details regarding those alleged encounters. Id. 1 19. Given the lack of any claim that Defendant 
used the mail, phone, or intemet to induce Plaintiff to engage in prohibited sexual conduct—and 
the FAC's admission that all alleged inducements and solicitations occurred In person, without 
use of an interstate instrumentality—Count One must be dismissed because it fails to provide 
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factual allegations that, if true, would show that Plaintiff is the victim of a violation of § 2242(b). 
To be sure, Plaintiff does allege that "Defendant or an authorized agent would call and 
alert Defendant's assistants shortly before or after he arrived at his Palm Beach residence," FAC 
¶ ll—just like any professional would alert his or her administrative assistant that he or she was 
coming to town. But Congress has not made that a crime, and even if Defendant's assistants 
later "would seek out economically disadvantaged and underage girls from West Palm Beach," 
id., it cannot reasonably be said that Defendant was "using the mail or any facility or means of 
interstate ... commerce [to) knowingly persuade[], induce()) entice[], or coerce[ a minor) to 
engage in prostitution or any sexual activity." 18 U.S.C. § 2242(b). Again, the statute only 
prohibits online or telephonic contact with minors—not with one's secretary. 
Nor is it sufficient that Plaintiff baldly asserts that Defendant "traveled to his mansion in 
Palm Beach for the purpose of luring minor girls," and "used the telephone to contact these 
minor girls for the purpose of coercing them into acts of prostitution." 18 U.S.C. § 2242(6). 
These bald allegations cannot survive a motion to dismiss. See Iqbal, slip op. at 14 ("Threadbare 
recitals of the elements of a cause of action, supported by mere conclusory statements, do not 
suffice."); Thrombi)+, 550 U.S. at 561 (it is not enough that "the pleadings le[ave] open the 
possibility that a plaintiff might later establish some set of undisclosed facts to support 
recovery") (quotation and alteration omitted). And even if they could, these unsupported claims 
do not demonstrate that this Plaintiff is entitled to relief: whether or not Defendant ever used to 
phone to contact some minor, a bare allegation that he called someone, sometime, does not 
remotely establish that he called Plaintiff—much less that he used the phone to coerce Plaintiff 
into engaging in prohibited sexual contact. 
The bottom line is that Plaintiff would have alleged that Defendant called her and 
induced her over the phone to commit a prohibited sex act if she could, and she would have done 
so with at least the same amount of detail with which she has alleged the single encounter she 
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describes. But she hasn't—because she can't—and Count I must be dismissed with prejudice. 
IV. 
COUNT TWO MUST BE DISMISSED BECAUSE IT DOES NOT PLEAD A 
VIOLATION OF 18 U.S.C. § 2423(b). 
Count II of the FAC asserts a cause of action under 18 U.S.C. § 2255 predicated on a 
claim that Defendant violated 18 U.S.C. § 2423(6). Again, as set forth above, this Count is 
legally unsustainable for the simple reason that Defendant has never been convicted under 
§ 2423(b). Supra at § II. In the alternative, Count II still must be dismissed because the FAC 
does not make factual allegations that, even if true, would establish that Defendant violated 
§ 2423(6) or that Plaintiff is the victim of such a violation. 
As a threshold matter, however, it bears note that the FAC's factual allegations are so 
vague that it cannot be determined which version of 18 U.S.C. § 2423(b) even applies to this 
Count. Prior to April 30, 2003, 18 U.S.C. § 2423(b) provided that: 
A person who travels in interstate commerce, or conspires to do so, or a United 
States citizen or an alien admitted for permanent residence in the United States 
who travels in foreign commerce, or conspires to do so, for the purpose of 
engaging in any sexual act (as defined in section 2246) with a person under 18 
years of age that would be in violation of chapter 109A if the sexual act 
occurred in the special maritime and territorial jurisdiction of the United States 
shall be fined under this title, imprisoned not more than 15 years, or both. 
18 U.S.C. § 2423(b) (2002) (emphasis added). On April 30, 2003, the Prosecutorial Remedies 
and Other Tools to end the Exploitation of Children Today Act of 2003, or "PROTECT Act," 
Pub. L. No. 108-21, 117 Stat. 650, became effective, and § 2423 was amended to read: 
A person who travels in interstate commerce or travels into the United States, or a 
United States citizen or an alien admitted for permanent residence in the United 
States who travels in foreign commerce, for the purpose of engaging in any illicit 
sexual conduct with another person shall be fined under this title or imprisoned 
not more than 30 years, or both. 
18 U.S.C. §2423(b) (2003) (emphasis added). 
The obvious problem is that Plaintiff has not pleaded the dates on which the alleged 
travel or resulting sexual activity occurred. She merely alleges that she "was first brought to 
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Defendant's mansion in or about the spring of 2003," FAC 1 18, and that she later was "lured ... 
to the Epstein mansion on at least one and perhaps two other occasions in the spring and/or 
summer of 2003." Id. 119. Since these vague allegations leave open the possibility that the 
alleged predicate conduct could have occurred either before or after the PROTECT Act's 
effective date, it is impossible to determine what law governs. No matter how generously ono 
construes the pleading standards, they at least require allegations that are sufficiently precise to 
permit the Court to determine what law governs. Yet without alleging any specific dates, the 
FAC falls well short of that mark and ought to be dismissed for that reason alone. 
Under either version of the statute, however, the key point is that § 2423 does not prohibit 
interstate travel that merely happens to result in illicit sexual conduct. Instead, the courts 
repeatedly have held that the statute applies only if the defendant's dominant motive for 
interstate travel was to engage in unlawful sexual activity. See, e.g., United States'. Tvkarskv, 
446 F.3d 458, 471 (3d Cir. 2006) ("[T]he government must show that the criminal sexual act was 
a dominant purpose of the trip, not a merely incidental one.") (citing United State/. Hayward, 
359 F.3d 631, 638 (3d Cir. 2004)) (emphasis added). That interpretation of the law is obviously 
correct. While § 2423(b) is relatively new—it first was enacted as part of the Violent Crime 
Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat 1796, 2037—it was 
added to the Mann Act (first passed in 1910) and uses the identical "for the purpose of language 
set forth in the original version of that statute. See 18 U.S.C. § 2423(a) (1986). Accordingly, 
courts addressing § 2423(b) have relied on longstanding case law interpreting the Mann Act's 
use of the statutory phrase. See, e.g., United States'. Garcia-M, 
234 F.3d 217, 220 n.3 (5th 
Cir. 2000); United States I. Yang, 128 F.3d 1065, 1069-70 (7th Cir. 1997); United Statosi. Ellis 
935 F.2d 385, 389-90 (1st Cir. 1991); see also United States'. Hoschouer, 224 Fed. Appx. 923, 
926-27 (11th Cir. 2007) (unpublished opinion); cf. Gustafson'. Alloyd Co.. Inc., 513 U.S. 561, 
570 (1995) ("[W]e adhere[] to the normal rule ... that "identical words used in different parts of 
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