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DOJ’s Use Of Foreign Evidence Requests Questioned

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According to this recent Wall Street Journal article, “Justice Department lawyers have improperly used requests for overseas evidence to buy more time to bring some fraud cases, a memo filed with the agency’s internal watchdog alleges. […] If the allegations in the memo are determined to be true, they could indicate that the Justice Department has bent the rules in a way that damaged defendants’ rights. Suspects in many federal crimes can’t be charged more than five years after the crime has been committed. Such statutes of limitations were enacted to protect possible defendants from being accused long after a crime, when memories had faded and evidence may have disappeared.”

Although the article does not specifically mention any Foreign Corrupt Practices Act enforcement actions, as described below, the general issue discussed in the article is FCPA relevant.

As stated in the FCPA Guidance under the heading “Statute of Limitations in Criminal Cases.”

“There are at least two ways in which the applicable limitations period is commonly extended. First, companies or individuals cooperating with DOJ may enter into a tolling agreement that voluntarily extends the limitations period. Second, under 18 U.S.C. § 3292, the government may seek a court order suspending the statute of limitations posed in a criminal case for up to three years in order to obtain evidence from foreign countries. Generally, the suspension period begins when the official request is made by the U.S. government to the foreign authority and ends on the date on which the foreign authority takes final action on the request.”

For additional background information see this previous guest post titled “Navigating the Arcane World of Mutual Legal Assistance Treaties, Letters Rogatory and Evidence-Gathering From Abroad.”

The DOJ’s use of section 3292 was subjected to judicial scrutiny in the Frederic Bourke case (see 493 F.Supp.2d 693 (S.D.N.Y. 2007) as 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.’”

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