Not the most exciting title that is for sure, but 18 USC 3292 can play an important role in FCPA enforcement in terms of the statute of limitations.
The statutory provision states in full:
(a) (1) Upon application of the United States, filed before return of an indictment, indicating that evidence of an offense is in a foreign country, the district court before which a grand jury is impaneled to investigate the offense shall suspend the running of the statute of limitations for the offense if the court finds by a preponderance of the evidence that an official request has been made for such evidence and that it reasonably appears, or reasonably appeared at the time the request was made, that such evidence is, or was, in such foreign country.
(2) The court shall rule upon such application not later than thirty days after the filing of the application.
(b) Except as provided in subsection (c) of this section, a period of suspension under this section shall begin on the date on which the official request is made and end on the date on which the foreign court or authority takes final action on the request.
(c)The total of all periods of suspension under this section with respect to an offense—
(1) shall not exceed three years; and
(2) shall not extend a period within which a criminal case must be initiated for more than six months if all foreign authorities take final action before such period would expire without regard to this section.
(d) As used in this section, the term “official request” means a letter rogatory, a request under a treaty or convention, or any other request for evidence made by a court of the United States or an authority of the United States having criminal law enforcement responsibility, to a court or other authority of a foreign country.
As highlighted in this recent post regarding a U.S. court denying Norway’s request to extradite a U.S. citizen who was convicted of bribery offenses in Norway, the court rejected the DOJ’s position on 18 USC 3292. As stated by the court:
“The United States suggests that the statute of limitations “may have been tolled… while Norway was seeking evidence from other countries, pursuant to 18 USC 3292. That statute provides:
[…]
In support of the application of this tolling statute, the United States offered a statement from Esben Kyhring, Norwegian Senior Public Prosecutor, which indicated that during the period from June 2011 to January 2015, Norway made mutual legal assistance requests to twelve different countries. Accordingly, the Court finds by a preponderance of the evidence that official requests were made to foreign countries. As to the next prong, however, the United States failed to make a showing such that a court could find “that it reasonably appears, or reasonably appeared at the time [each] request was made, that such evidence [of the offense] is, or was, in such foreign country.” The United States offers only vague descriptions of the requests sought, e.g., “company information,” “interview,” and “search and seizure.” With just this showing, a court could not have suspended the running of the statute of limitations, and the United States’ argument that the statute of limitations “may have been tolled” is unavailing.”
This was not the first time a court has rejected the DOJ’s position regarding 18 USC 3292.
For instance, in U.S. v. Bourke the court dismissed certain criminal charges against various individuals. (See 493 F.Supp.2d 693 affirmed 541 F.3d 166). The DOJ argued that the statute of limitations should be extended under 18 U.S.C. § 3292 based on the government’s official requests for foreign evidence from the Netherlands and Switzerland. However, the court rejected this argument and noted that the government did not move to “suspend the running” of the statute of limitations until after it had expired and it was thus not entitled to any tolling. In so holding, the court noted that “this problem can easily be avoided-and easily could have been avoided in this case,” but that “the government waited almost nine full months after making the official request to the Netherlands before applying for a section 3292 suspension.” According to the court, “the mere fact that the government could have easily avoided this dismissal does not change the result here” and the court noted that “statutes of limitations must be enforced, even where it deprives society of its ability to prosecute otherwise viable criminal offenses; ‘that is the price we pay for repose.’”
