Foreign evidence collection offers prosecutors a significant advantage. 18 U.S.C. § 3292 allows them to toll the statute of limitations for federal crimes by up to three years while awaiting the collection of foreign evidence.
While the statute is designed to accommodate the time needed for foreign evidence collection, there are valid concerns that prosecutors might exploit this law to prolong the time they have to file charges. This is particularly worrisome given the often lengthy response times from foreign governments to these requests.
For companies and individuals potentially involved in federal criminal activities, it's crucial to remain vigilant about the possibility of federal charges, even after the statute of limitations would normally have expired. Understanding the potential for tolling under section 3292 is essential when assessing any limitations period.
Congress enacted § 3292 to address the delay associated with collecting evidence from foreign jurisdictions, prompted by the increasing use of offshore banks to launder the proceeds of criminal activities and the need for federal prosecutors to obtain records from those banks.
Mutual Legal Assistance Treaty
When evidence relevant to an investigation is located in a foreign country for which the US has a Mutual Legal Assistance Treaty (MLAT), the government can make an 'official request' for that evidence to the relevant authorities in that country. This evidence could be financial records, witness statements, or physical evidence.
The government must then apply to the district court before which the grand jury investigating the offense has been impaneled, seeking to toll the statute of limitations. This process involves specific steps and requirements that must be met.
These requests are typically made ex parte, leaving defendants unable to contest the request and unaware that the limitations period has been tolled. If the application is granted, the statute of limitations is suspended from the date the official request was made until the date the foreign government takes “final action” on the request, for a maximum tolling period of three years.
However, if the foreign government takes final action before the original 5-year limitation period expires, the statute of limitations is only tolled for six months.
What Does Section 3292 Say?
18 U.S. Code § 3292 - Suspension of limitations to permit the United States to obtain foreign evidence says -
"(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."
Tolling Applications Quick Facts
- The statute of limitations (SOL) is a legal deadline by which prosecutors must file criminal charges.
- After the SOL expires, the government can no longer pursue prosecution.
- Prosecutors may request a pause or 'suspension' of the SOL when waiting for evidence from a foreign country.
- The suspension grants the government up to three more years to secure the material through formal procedures.
- Federal prosecutors must confirm to the court that the evidence they seek is located in another country.
- A federal judge must verify within 30 days whether the request is legitimate and necessary for the case.
- Prosecutors must seek evidence through official channels, such as Mutual Legal Assistance Treaties (MLATs).
- For defendants, 18 U.S.C. 3292 creates challenges by extending the timeline during which they could face prosecution.
The Official Request
When deciding whether to grant the government's application to suspend the statute of limitations for an offense, section 3292 stipulates that the district court must find by a preponderance of the evidence that an official request has been made to a foreign country for evidence of the offense. It also states that, at the time the request was made, it reasonably appears that the evidence is, or was, in the foreign country.
In addition to these express statutory requirements, the Eleventh Circuit has also recognized implicit requirements of reasonableness and relevance. While designed to support legitimate investigations, the statute may be susceptible to misuse.
It's crucial to note that federal prosecutors might improperly seek suspension where no genuine effort is made to pursue foreign evidence, or they may allow the suspension period to lapse without providing substantive updates about the status of the request. This misuse of the statute can create additional challenges for defendants, underscoring the importance of vigilance and a thorough understanding of the law.
Addressing international evidence requests involves complex geopolitical challenges, including language barriers and jurisdiction disputes. These complexities can leave federal defendants in a state of uncertainty, causing unnecessary stress and highlighting the broader implications of the statute. Defendants must be aware of these challenges and their potential impact on their case.
Related Federal Laws
Section 3292 of 18 U.S. Code is just one of several federal laws that govern the collection and use of evidence in criminal cases. Understanding these laws can provide a more comprehensive view of the legal landscape and potential implications for your case, empowering you with the knowledge to navigate the legal system effectively.
18 U.S. Code Chapter 213 Part II, Limitations, has numerous related federal statutes, including the following:
- 18 U.S.C. 3281 - Capital offenses.
- 18 U.S.C. 3282 - Offenses not capital.
- 18 U.S.C. 3283 - Offenses against children.
- 18 U.S.C. 3284 - Concealment of a bankrupt's assets.
- 18 U.S.C. 3285 - Criminal contempt.
- 18 U.S.C. 3286 Extension of the statute of limitations for certain terrorism offenses.
- 18 U.S.C. 3287 - Wartime suspension of limitations.
- 18 U.S.C. 3288 - Indictments and information dismissed after the period of limitations.
- 18 U.S.C. 3289 - Indictments and information dismissed before the period of limitations.
- 18 U.S.C. 3290 - Fugitives from justice.
- 18 U.S.C. 3291 - Nationality, citizenship, and passports.
- 18 U.S.C. 3293 - Financial institution offenses.
- 18 U.S.C. 3294 - Theft of a major artwork.
- 18 U.S.C. 3295 - Arson offenses.
- 18 U.S.C. 3296 - Counts dismissed pursuant to a plea agreement.
- 18 U.S.C. 3297 - Cases involving DNA evidence.
- 18 U.S.C. 3298 - Trafficking-related offenses.
- 18 U.S.C. 3299 - Child abduction and sex offenses.
- 18 U.S.C. 3300 - Recruitment or use of child soldiers.
- 18 U.S.C. 3301 - Securities fraud offenses.
What are the Defenses?
Federal defendants have a variety of strategies available to them when responding to tolling applications, including challenges to the initial application, the "final action" by the foreign government, and due process considerations.
For example, the Due Process Clause of the Fifth and Fourteenth Amendments prohibits the deprivation of life, liberty, or property without due process of law. Where the government's tolling request was submitted to the court ex parte, defendants may argue that the application violates due process.
When a petition is granted to suspend the statute of limitations, our federal criminal defense attorneys can protect your rights by monitoring evidence timelines and identifying procedural violations. Perhaps we can challenge the validity of the SOL suspension. Perhaps we can file motions to dismiss charges if the government exceeds the allowable timeframe for prosecution despite the suspension.
Perhaps we can question the legitimacy of the foreign evidence request itself. If the evidence sought is irrelevant to the charges or the request was improperly served, we could argue for dismissal on procedural grounds.
Delays in filing charges may not only impact your defense strategy but also pose risks to your personal and professional life. It could also violate your constitutional right to a speedy trial. We can evaluate whether procedural errors occurred and fight for dismissal if it's determined that federal prosecutors have overstepped their legal limits. For more information, contact the Hedding Law Firm, located in Los Angeles, California.
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