Suspension of Criminal Statute of Limitations Upon Request to a Foreign Government for Information (11/14/13)

I have written before on 18 USC 3292, here, which which suspends the criminal statute of limitations while a request to a foreign government for information is pending pursuant to a grand jury investigation. See Eleventh Circuit Sustains Statute Suspension For Foreign Records Request Under 18 USC 3292 (Federal Tax Crimes Blog 8/17/12), here, and Court holds Application to Court for 18 USC 3292 Foreign Treaty Request Suspension Must be Made Within Statute of Limitations (Federal Tax Crimes Blog 2/11/12), here.  In United States v. Arrington, 2013 U.S. Dist. LEXIS 159549 (D NE 11/713), here [to come], the court has this discussion of this statute in a case where the defendant was charged "with conspiracy, mail fraud, wire fraud, and aiding and abetting for allegedly planning and perpetrating an investment scheme with intent to defraud, using mail and wire communications":

Under 18 U.S.C. § 3292, the suspension of a statute of limitations pending an official request for evidence to a foreign country is permitted under certain circumstances. 18 U.S.C. § 3292(a). The statute provides: 

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. 

18 U.S.C. § 3292(a)(1). The statute also provides that such a suspension may not extend beyond the time the foreign country takes final action, or, in any event, may not extend the statute for more than three years from the filing of the official request. 18 U.S.C. § 3292(b) & (c). 

Before suspending the running of the statute of limitations, the district court must find by a preponderance of the evidence that (1) an official request has been made for the evidence and (2) it reasonably appears or appeared at the time the request was made that the evidence of the crime is or was in a foreign country. United States v. Jenkins, 633 F.3d 788, 797 (9th Cir. 2011); 18 U.S.C. § 3292(a)(1). "[T]he government has some burden to establish, as opposed to being able to merely assert without support, that the foreign evidence it seeks meets the section's requirements." Id. at 798. A § 3292 application "must be supported by materials that 'include or [are] accompanied by some indicia of reliability.'" Id. (quoting United States v. Trainor, 376 F.3d 1325, 1331 (11th Cir. 2004)). Because § 3292 extends the limitations period (itself designed to ensure the reliability of evidence) and an application under § 3292 is made ex parte, the government must meet a "minimum evidentiary burden." Trainor, 633 F.3d at 1332.

The § 3292 preponderance standard is quite broad. Jenkins, 633 F.3d at 798; Trainor, 376 F.3d at 1332-33. The government can satisfy its burden of proof under § 3292(a)(1) 'by including a sworn or verified application containing the necessary factual information, testimony by Government officials, affidavits, declarations, exhibits, or other materials of evidentiary value,' even including hearsay evidence." Jenkins, 633 F.3d at 798 (quoting Trainor, 376 F.3d at 1333). However, a "mere summarization of the evidence in the Government's possession . . . standing alone," will not satisfy the government's burden. Id. at 1333; see also United States v. Wilson, 322 F.3d 353, 363 (5th Cir. 2003) (holding that the government did not meet its § 3292(a)(1) burden when it presented "circumstantial evidence of questionable origin" and the testimony of a witness "wholly without personal knowledge" of the issues). When the government moves to suspend the statute of limitations under § 3292, "it must present something with evidentiary value tending to prove that it is reasonably likely that evidence of the charged offenses is in a foreign country—not merely unsupported assertions." Jenkins, 633 F.3d at 798; see Trainor, 376 F.3d at 1332-34; see also United States v. DeGeorge, 380 F.3d 1203, 1215 (9th Cir. 2004) (stating that district courts should not "simply rubber-stamp the government's request" but should "hold the government to its burden."). 

The offenses designated in the application must be reasonably specific enough to elicit evidence probative of the offenses under investigation. United States v. Swartzendruber, 2009 WL 485144, *5 (D.N.D. Feb. 25, 2009) (quoting United States v. Neill, 952 F. Supp. 831, 832-33 (D.D.C. Nov. 26, 1996)); United States v. Ratti, 365 F. Supp. 2d 649, 656 (D. Md. Feb.1, 2005). To require the United States to be omniscient of every possible crime before records are requested and the investigation is complete would be an overly formalistic reading of the statute. See Swartzendruber, 2009 WL 485144 at *5 (finding that tax fraud is intimately related to the wire fraud, money laundering, and conspiracy to commit money laundering offenses that were under investigation and listed in the application and tolling order).

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The court agrees with the magistrate judge's conclusion that the government made a proper showing that an official request was made and it was for evidence that reasonably appeared to be in the country to which the request was made. The government's request can be reasonably understood to include evidence probative of mail and wire fraud as well as money laundering. The government presented more than unsupported allegations to the district court in support of its application. The sworn declaration of Postal Inspector Beekhuizen sufficiently outlined the investigation and referred to the targets of the investigation. A sworn declaration has evidentiary value. Inspector Beekhuizen's sworn attestation that funds had been wired to accounts in foreign countries tended to prove it was reasonably likely that evidence of the alleged fraud and money laundering offenses would be found there. The court agrees with the magistrate judge that a reasonable fact-finder would conclude that evidence of an investment fraud scheme existed abroad and could be traced to offshore bank and investment accounts. 

Further, the court agrees the magistrate judge correctly found that the description of the scheme to defraud contained in the Application and Declaration, along with the nature of the documents requested in the foreign jurisdictions, was sufficiently specific. It suggested that wire and mail fraud were being investigated and the evidence sought was related to the scheme to defraud investors. Mail and wire fraud and money laundering are intimately connected.

 The defendant did argue, in addition, that Section 3292 constituted an improper delegation to the courts of a legislative function. -- to set statutes of limitations.  The Court rejected the argument:

With respect to improper delegation of legislative power, the court finds the defendant's arguments are misplaced. The tolling statute does not represent an improper delegation to the courts. Just as Congress was empowered to define the crime, including the statute of limitations, it was empowered to provide for tolling of the statute of limitations. The statute clearly sets out the requirements the prosecutor must meet for the district court to be authorized to apply § 3292 and suspend the statute of limitations. Congress legislated an intelligible principle that the court is directed to apply and the legislative act is not a forbidden delegation. The judicial finding required in connection with a § 3292 application—determining the quantum of evidence—is the type of decision courts are authorized and qualified to make.

Finally, the Court held that, in any event, even if Section 3292 were not applicable, overt acts of the conspiracy occurred within the applicable five-year period.