18 USC 3292 can play a meaningful role in certain FCPA enforcement actions in terms of the statute of limitations.
The statutory provision states in pertinent part:
(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.
Recently, the Ninth Circuit addressed the question of what “offense” means in § 3292.
U.S. v. So was not an FCPA enforcement action, but rather involved an alleged scheme to bribe various General Motors executives in the hopes of receiving an automotive supply contract.
Hyoung Nam “Brian” So was charged with one count of conspiracy to commit federal funds bribery, in violation of 18 U.S.C. § 371 with the indictment identifying the “object of the conspiracy” as “bribery concerning programs receiving federal funds in violation of [18 U.S.C.] § 666(a)(1)(B).”
During the U.S. government’s investigation, it submitted a formal request to South Korea for assistance under the Mutual Legal Assistance Treaty (MLAT) between those two countries.
As noted in the Ninth Circuit’s opinion.
“The request … listed the offenses under investigation: wire fraud, 18 U.S.C. § 1343; honest services fraud, 18 U.S.C. § 1346; money laundering with intent to promote unlawful activity, 18 U.S.C. § 1956(a)(2)(A); conspiracy to commit money laundering, 18 U.S.C. § 1956(h); operating an unlicensed money transmitting business, 18 U.S.C. § 1960; interstate and foreign travel or transportation in aid of a racketeering enterprise, 18 U.S.C. § 1952(3)(2); conspiracy to commit an offense against the United States, 18 U.S.C. § 371; and the general indirect criminal liability statute, 18 U.S.C. § 2.”
While waiting for South Korea’s response to the MLAT request, the government filed an ex parte application to toll the statute of limitations under 18 U.S.C. § 3292.
The government requested that the district court “suspend the running of the statute of limitations for offenses arising out of the grand jury’s investigation of SO, . . . and others”—namely, “for bribery, in violation of 18 U.S.C. § 1952; wire fraud, in violation of 18 U.S.C. § 1343; honest services fraud, in violation of 18 U.S.C. § 1346; unlicensed money transmissions, in violation of 18 U.S.C. § 1960; and money laundering, in violation of 18 U.S.C. § 1956.”
The district court issued an order based on the government’s request.
Ultimately, So was charged with one count of conspiracy to commit federal funds bribery, in violation of 18 U.S.C. § 371 with the indictment identifying the “object of the conspiracy” as “bribery concerning programs receiving federal funds in violation of [18 U.S.C.] § 666(a)(1)(B).”
So moved to dismiss the indictment as time-barred. The district court denied the motion … ruling that the crime charged—conspiracy to commit federal funds bribery—was within the scope of the tolling order, even though that offense was not specifically listed in the tolling application. In the district court’s view, it was sufficient that the application mentioned bribery; “it would be too formulaic or formalistic to require the application to list every possible crime.” And from the mention of bribery in the application, “particularly given the facts in this case that [were] articulated [in the application],” the district court found that “[one] could contemplate conspiracy to commit bribery, among other things.” The district court then ruled that the order tolled the applicable statute of limitations for a sufficient period to make the indictment against So timely.
On November 15, 2023, a jury found So guilty of one count of conspiracy to commit federal funds bribery. On August 14, 2024, the court sentenced So to two years’ imprisonment, three years of supervised release, and a fine of $250,000.
So appealed and in the words of the Ninth Circuit the “salient question is whether So’s charged offense was one of the offenses the district court was referring to when it spoke of “the offenses set forth in the government’s ex parte application” and “the offenses under investigation.”
So argued that because tolling under § 3292 is “offense specific” and the statutory term “offense” ordinarily refers to “a criminal violation with separate elements of proof, not a single criminal transaction, the government’s failure to include conspiracy to commit federal funds bribery in either the tolling application or the
proposed order it provided to the court means that this offense was not tolled, and therefore the indictment charging him with that offense was untimely.
The government argued that (1) tolling under § 3292 applies to all offenses that are “intimately related” to any offenses specifically tolled; and (2) the statutory term “offense” should not be read to impose an implicit requirement that the government and district court list by statutory citation all offenses for which tolling is sought and ordered.
The Ninth Circuit stated:
“We hold that tolling under § 3292 applies to every offense—that is, a course of conduct in violation of a particular statutory prohibition—that is covered by the district court’s tolling order and for which the required statutory findings have been made. Although the tolling order must identify which offenses are tolled, it need not do so by citation to the relevant statutory prohibition. Whether a particular offense is embraced by the tolling order is a question of construction. And similar to how we construe an indictment, we determine the identity of the offenses covered by a tolling order based on their substance, not their label.
Although the tolling order here did not list by name or citation the charged offense of conspiracy to commit federal funds bribery, it is clear from context that this offense was covered by the tolling order. The district court ordered that the statute of limitations be suspended “for the offenses set forth in the government’s ex parte application.” And in providing detail on those offenses, the government’s application described conduct that embraced not only the essential facts of So’s conspiracy charge, but also other key facts alleged in the indictment. The offense charged is thus substantively the same as one of the offenses for which tolling was sought and ordered. The failure to identify this offense by the correct statutory citation was merely an “error, defect, irregularity, or variance that does not affect substantial rights.” Fed. R. Crim. P. 52(a).”
