March 28, 2005
Statute of Limitations May Not Be Suspended for Evidence-Gathering in Foreign Countries When Application Made After Evidence Received
One aspect of international white collar crime investigations that is problematic for the government is the delay in gathering evidence from outside the United States, which can be a laborious process. A federal statute, 18 U.S.C. Sec. 3292, permits a district court to suspend the running of the statute of limitations by up to three years to permit the government to gather evidence in a foreign country for a grand jury investigation. In United States v. Atiyeh [here, argued on appeal by Peter Goldberger], the Third Circuit confronted the problem of a district court granting such an extension when the the government filed for it after it had obtained the evidence from the foreign governments, when the counts in the indictment were outside the five year statute of limitations otherwise. The government obtained its information in the prosecution of the defendant for running an off-shore betting operation from Canada and Antigua at least two months before it filed is application to extend the statute of limitations, and asserted that the extension could be filed for any case involving the collection of evidence from a foreign country. The Third Circuit rejected that position, holding that
The Government argues that it needs additional time to sift through and examine the foreign evidence. There is no provision in the statute giving the Government extra time. To the contrary, 18 U.S.C. § 3292(b) is explicit in providing that the "period of suspension . . . end on the date on which the foreign court or authority takes final action on the request." 18 U.S.C. § 3292(b). The legislative history confirms that Congress was concerned only with the prejudice the Government suffers when it must obtain foreign evidence; it was not concerned with the delays attendant to sifting through such evidence.
As the Third Circuit acknowledged, its position conflicts with the Ninth Circuit's decision in United States v. Miller, 830 F.2d 1073 (9th Cir. 1987), but the court stated that "we are not persuaded by [Miller's] analysis." (ph)
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