MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS COUNTS 1 AND 2 OF THE THIRD SUPERSEDING INDICTMENT ON THE GROUNDS THAT 18 U.S.C. § 1512(f)(1), AS IT IS BEING APPLIED IN THIS CASE, VIOLATES THE EX POST FACTO CLAUSE OF THE UNITED STATES CONSTITUTION AND IT VIOLATES DEFENDANT’S RIGHT TO PROCEDURAL DUE PROCESS

Plaintiffs’ claims for fraudulent and negligent misrepresentation fail because the Defendants did not know of the allegedly misrepresented conditions. Furthermore, Plaintiffs were not justified in relying upon the representations made by the defendants. To the extent the purported defects existed at the time of contracting, they were open and obvious and could have been detected through reasonable diligence. Plaintiff’s breach of contract claim fails because there is no genuine dispute that the defendants did not have actual knowledge of the presence of bats under the roof tiles on the house. Accordingly, they did not breach a contractual duty owed to Plaintiffs as prescribed by the Seller’s Property Disclosure form. Plaintiffs’ claim for civil conspiracy likewise fails because the defendants have not committed an unlawful act.