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The United States Constitution provides that neither Congress nor any state shall pass any ex post facto law. U.S. Const. art. I, § 9, cl. 3; art. I, § 10, cl. 1. See Miller v. Florida, 482 U.S. 423, 107 S. Ct. 2446, 2450, 96 L. Ed. 2d 351 (1987). The prohibition against ex post facto enactments bans 'every law that makes an action' done before the passing of the law, and which was innocent when done, criminal; and punishes such action.' Id. at 2450 (quoting Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L. Ed. 648 (1798)). Although the ex post facto clause applies to the legislature and not to the courts, 'the principle on which the Clause is based -- the notion that persons have a right to fair warning of that conduct which will give rise to criminal penalties -- is fundamental to our concept of constitutional liberty.' Marks v. United States, 430 U.S. 188, 191, 51 L. Ed. 2d 260, 97 S. Ct. 990 (1977). Hence, the judicial enlargement of a criminal statute by retroactive application violates the fifth amendment due process clause in the same way a legislative ...

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