As the new administration shifts some criminal enforcement priorities, particularly relating to activities abroad, potential targets of cross-border investigations are re-evaluating their strategies and exposure to enforcement risk. At this month’s American Bar Association White Collar Crime Institute, one panel1 took a close look at how the administration’s foreign policy objectives and criminal enforcement priorities could impact cases where the government relies on international judicial assistance to investigate and prosecute criminal charges. Panelist comments and audience questions stressed a practical consideration for defense attorneys: stay mindful of both the statutory limitations period and the potential applicability of a special tolling provision where evidence is located abroad.
Federal prosecutors regularly rely on foreign courts and foreign judicial process in locating and obtaining evidence during pre-indictment investigations. The target of an investigation typically does not become aware of the foreign assistance until much later in the case, if ever. At the pre-indictment, investigatory stage of criminal cases, the United States invokes international judicial assistance primarily through bilateral treaties with foreign countries. Known as Mutual Legal Assistance Treaties, or “MLATs,” these treaties allow prosecutors to seek evidence located abroad through diplomatic channels. Outgoing MLAT evidence requests are processed under the foreign state’s laws and are not subject to judicial review in the United States.
Because obtaining evidence located outside the United States can be slow and labor intensive, Congress enacted 18 U.S.C. § 3292, which allows the government to apply ex parte for an order to toll the statute of limitations for up to three years in cases where the government has officially requested evidence located in a foreign country from the competent court or authority in that country.
To obtain a Section 3292 tolling order, the government needs to establish by a preponderance of the evidence (1) that “an official request has been made” for the evidence located abroad, and (2) “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 evidentiary burden is quite low, requiring only that the government produce “some evidence—something of evidentiary value” that “meet[s] a minimum threshold of reliability.” United States v. Trainor, 376 F.3d 1325, 1336 (11th Cir. 2004).
Section 3292 tolling runs from the date of the official request until the date when the competent foreign court or authority “takes final action on the request.” 18 U.S.C. § 3292(b). Section 3292 tolling cannot exceed three years and, if the foreign authorities take “final action” before the limitations period expires, Section 3292 tolling cannot exceed six months. Id. § 3292(c).
Targets of investigations normally lack insight into whether the government has requested evidence from abroad or obtained a Section 3292 tolling order—not to mention whether foreign authorities have taken “final action” on such requests—so it is important to account for the possibility of Section 3292 tolling in assessing exposure to criminal liability in cross-border matters. That is, targets should consider their durational exposure by reference to both the statute of limitations and the potential applicability of Section 3292. Indeed, where changes to potential exposure are driven by shifts in enforcement priorities, rather than legislative action, accounting for Section 3292 tolling may be more important than ever.
1 The panel was entitled “International Comity in US Criminal Cases – Extraterritoriality, Extradition, and International Cooperation” and moderated by Sean Hecker of Hecker Fink, LLP. Panelists were Rebecca Niblock of Kingsley Napley LLP; Joon H. Kim of Cleary Gottlieb Steen & Hamilton LLP; and Paul Butler of Butler Legal Strategies, PLLC.
