29. The Defendant cannot be charged with aggravated kidnapping as retroactively classifying the
Defendant's offense as aggravated felony constitutes ex post facto punishment.
30. Ex post facto prohibition is a safeguard against the "lack of fair notice and governmental
restraint [that exists] when the Legislature increases punishment beyond what was prescribed
when the crime was consummated." United States v. Bodre, 948 F.2d 28, 31 (1 st Cir. 1991)
(internal citation omitted).
31. This reclassification violates the ex post facto clause under the now familiar analysis in
Calder v. Bull, 3 U.S. (3 Dan.) 386, 390 (1798).
32. 1st Retroactive legislation violates ex-post facto law when it: "makes an action, done before
the passing of the law, and which was innocent when done, criminal; and punishes such
action.
33. 2"d. Every law that aggravates a crime, or makes it greater that it was, when committed.
34. 3rd. Every law that changes the punishment, and inflicts a greater punishment, than the law
annexed to the crime, when committed. "Calder, 3 U.S. at 390."
35. Combined with the mandatory detention required by the retroactive change in the definition
of aggravated felonies, the penalties the defendant now suffers qualify the retroactive
classification of an aggravated felony as "disadvantages." Where a law is penal,
"retrospective" and "disadvantageous to the offender affected by it", it violates the provisions
against Ex Post facto laws under the Massachusetts and the United States Constitution,
Massachusetts Constitution, Pt. I, Art. 24; U.S.C.A. Const. Art. 1, §§ 9, cl. 3, 10, cl. 1;
See U.S. v. Bodre, 948 F. 2d 28 (1st Cir. 1991). Richard v. MacAskill, 129 N.H. 405, 407
(1987).
36. As a result, a fail to grant this motion to dismiss violates his protection against Ex Post facto
punishment.
37. Defendant further asseverates that upon dismissal of this indictment it must be done with
prejudice citing Alabama v. Bozeman, 121 S. Ct. 2079, 2086, 533 U.S. 146 (U.S. 2001)
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