541 F.3d 166 (2nd Cir. 2008), 07-3107, United States v. Kozeny

Docket Nº:07-3107-cr.
Citation:541 F.3d 166
Party Name:UNITED STATES of America, Appellant, v. Viktor KOZENY, David Pinkerton, Defendants,[*] Frederic Bourke Jr., Defendant-Appellee.
Case Date:August 29, 2008
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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541 F.3d 166 (2nd Cir. 2008)

UNITED STATES of America, Appellant,

v.

Viktor KOZENY, David Pinkerton, Defendants, [*]

Frederic Bourke Jr., Defendant-Appellee.

No. 07-3107-cr.

United States Court of Appeals, Second Circuit.

August 29, 2008

Argued: Oct. 18, 2007.

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Jonathan S. Abernethy, Assistant United States Attorney (Michael J. Garcia, United States Attorney for the Southern District of New York, Jonathan S. Kolodner, Assistant United States Attorney, New York, NY, on the brief, Robertson Park, Assistant Chief, Fraud Section, United States Department of Justice, Washington, DC, of counsel), New York, NY, for Appellant.

Emily Stern, Proskauer Rose LLP (Robert J. Cleary, Dietrich L. Snell, Proskauer Rose LLP, New York, NY, and Dan K. Webb, Gene C. Schaerr, J. David Reich, Jr., Winston & Strawn LLP, Chicago, IL, on the brief), New York, NY, for Defendant-Appellee.

Before: SACK, KATZMANN, and HALL, Circuit Judges.

SACK, Circuit Judge:

The government appeals from a judgment of the United States District Court for the Southern District of New York

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granting defendant-appellee Frederic Bourke Jr.'s motion to dismiss as to most of the counts on which he had been indicted. The court concluded that the charges against him in those counts were barred by the statute of limitations. The government had previously applied for, and had been granted, a suspension of the applicable statute of limitations pursuant to 18 U.S.C. § 3292. The district court held that this suspension was invalid because the government's application was filed after the limitations period for the crimes under investigation had expired. The court concluded that although the statutory text was ambiguous, the legislative history of section 3292, the structure of the provision, the policy rationale behind statutes of limitations, and the doctrine of constitutional avoidance all pointed toward an interpretation of section 3292 that does not permit the government to apply to suspend a statute of limitations after the limitations period has expired.

Unlike the district court, we do not view the text of section 3292 as ambiguous. But we conclude that the plain language of the provision, and the structure and content of the law by which it was enacted, require the government to apply for a suspension of the running of the statute of limitations before the limitations period expires. We therefore affirm.

BACKGROUND

In a sealed indictment returned on May 12, 2005, defendant-appellee Frederic Bourke Jr. was charged with five counts of violating the Foreign Corrupt Practices Act (the “FCPA" ), 15 U.S.C. § 78dd-1 et seq.; two counts of violating the Travel Act, 18 U.S.C. § 1952; one count of conspiracy to violate the FCPA and the Travel Act, 18 U.S.C. § 371; two counts of money laundering, 18 U.S.C. § 1956; one count of conspiracy to commit money laundering, 18 U.S.C. § 371; and one count of making false statements to FBI agents in violation of 18 U.S.C. § 1001. The charges all relate to an alleged scheme to bribe senior government officials in Azerbaijan in an effort to ensure the privatization of the State Oil Company of the Azerbaijan Republic and to guarantee that Bourke profited from this privatization.

The parties do not dispute that 18 U.S.C. § 3282(a) establishes the statute of limitations for all of the crimes that Bourke is alleged to have committed. Under that provision, “[e]xcept as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed." Id.

The counts charging violations of the Travel Act and the money laundering statute, and four of the five counts charging violations of the FCPA, allege conduct that occurred no later than early July 1998. Barring any tolling or other suspension of the statute of limitations, then, the five-year limitations period for each of these offenses would have expired in early July 2003. The fifth count charging violations of the FCPA alleges conduct that occurred in September 1998. The statute of limitations for that charged crime would have run in September 2003.

The conduct related to the charge of making false statements occurred in or before May 2002. Barring any tolling or other suspension of the statute of limitations, the five-year limitations period for that offense would have run in or before May 2007.

Finally, the conduct related to the conspiracy charges continued until September 1998 for the money laundering conspiracy and until February 1999 for the FCPA and

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Travel Act conspiracy. Barring any tolling or other suspension of the statute of limitations, the five-year limitations periods for these offenses would have expired in September 2003 and February 2004, respectively.

Prior to the indictment, the government submitted requests to the governments of the Netherlands and Switzerland for evidence relating to activity it was investigating. Each request was made pursuant to a treaty on mutual legal assistance (“MLAT" ). See Treaty on Mutual Assistance in Criminal Matters, U.S.-Neth., June 12, 1981, 1359 U.N.T.S. 209; Treaty on Mutual Assistance in Criminal Matters, U.S.-Switz., May 25, 1973, 1052 U.N.T.S. 61. The request to the Netherlands was made on October 29, 2002; the request to Switzerland on January 13, 2003. On July 21, 2003, the government applied for an order under 18 U.S.C. § 3292 to suspend the running of the statute of limitations based on its MLAT requests. At that point the statute of limitations had run for all of the crimes under investigation other than the false statements charges, the conspiracy charges, and one FCPA count.

Section 3292 provides:

(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.

18 U.S.C. § 3292.

On July 22, 2003, the district court (George B. Daniels, Judge) entered a sealed order suspending the statute of limitations for the offenses under investigation. Pursuant to 18 U.S.C. § 3292(b), the district court ordered that “the periods of suspension shall begin on the dates on which the official requests were made and shall end on the date on which the authorities of the Governments of the Netherlands and the Swiss Confederation take final action on the official requests, such periods not to exceed a total of three years." The Swiss authorities produced documents in response to the MLAT on

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several dates, the last of which was September 10, 2004. The Dutch authorities produced documents on November 8, 2005. As noted, the indictment was returned on May 12, 2005, after the date on which Switzerland took final action but before the date on which the Netherlands did so. Because the suspension of the running of the statute of limitations was to “end on the date on which the authorities of the Governments of the Netherlands and the Swiss Confederation [took] final action" (emphasis added), at the time of the indictment, the statute of limitations was still ostensibly suspended on account of the outstanding MLAT request to the Netherlands.

On October 20, 2006, Bourke filed a motion to dismiss all but the false statements charges on statute of limitations grounds pursuant to Rule 12 of the Federal Rules of Criminal Procedure. He argued that section 3292 does not permit the government to apply for a suspension of the statute of limitations after it has expired...

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