U.S. v. Torres

Decision Date17 January 2003
Docket NumberNo. 02-11082.,02-11082.
Citation318 F.3d 1058
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Gabriel TORRES, Defendant-Appellant.
CourtU.S. Court of Appeals — Eleventh Circuit

Kathleen M. Williams, William L. Thomas, Federal Public Defender, Miami, FL, for Defendant-Appellant.

Gerald E. Greenberg, Anne R. Schultz, Dawn Bowen, Emily Smachetti, Miami, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before WILSON and FAY, Circuit Judges, and MILLS*, District Judge.

WILSON, Circuit Judge:

In an effort to avoid the running of the statute of limitations in a criminal case, the government obtained a suspension of the limitations period pursuant to 18 U.S.C. § 3292. This statute permits the tolling of the limitations period so that the government may pursue an official request for evidence located in a foreign country. The tolling begins at the time of the official request and concludes when the foreign government takes "final action" on the request. Id. § 3292(b). In this appeal, we decide, in an issue of first impression in this Circuit, what constitutes "final action" within the meaning of § 3292.


From the late 1980s through February of 1995 Gabriel Torres, the director of Garces Commercial College, and other employees of the college, were involved in a scheme to defraud the United States Department of Education by filing fraudulent Pell Grant applications.1 Their bogus submissions generated millions of dollars, which they eventually concealed in corporate bank accounts located in the Isle of Man. Subsequently, the government began investigating Torres and other Garces College employees for their involvement in the Pell Grant fraud.

In furtherance of its pending investigation, on July 9, 1999, the government made a formal Mutual Legal Assistance Treaty (MLAT) request through the Department of Justice's Office of International Affairs (OIA) for international assistance in obtaining evidence located in the Isle of Man.2 After the MLAT request, the government submitted an ex parte application to the district court for a suspension of the statute of limitations pursuant to § 3292. The district court granted the government's application, suspending the statute of limitations "for the period beginning on July 9, 1999, and ending on the date the Isle of Mann [sic] takes final action on the request for evidence."

The Isle of Man first responded to the government's MLAT request on November 12, 1999. At that time, Detective Constable Annie Kneale of the Isle of Man's Constabulary Fraud Squad transmitted the Isle of Man's response to the OIA. Specifically, she sent documents that the government requested in its MLAT request and a facsimile cover sheet stating, "Enclosed is the information you require." When the government received the documents from the OIA, however, it discovered that the Isle of Man had not included several documents that it requested.3

Thereafter, on January 12, 2000, without requesting an extension of its motion to toll the statute of limitations, the government, through the OIA, renewed its request to the Isle of Man. In the OIA's supplemental request, it asked the Isle of Man to provide the omitted documents, noting that they "were the subject of [its] original re[q]uest."4 On March 8, 2000, pursuant to the government's supplemental request, Detective Constable Kneale transmitted the documents that she originally sent in addition to the documents that she previously omitted. This time, the cover sheet accompanying the transmission provided, "Enclosed are all documents that Barclays Bank PLC Isle of Man hold on the above investigation."

After receiving all of the evidence that the government had requested from the Isle of Man, a grand jury returned an indictment against Torres and a codefendant on June 16, 2000 for making false and fraudulent claims with the Department of Education. Then, on June 29, 2000, the grand jury returned a thirty-eight-count superseding indictment against Torres and eight other defendants, charging Torres with conspiracy and related substantive charges for wire fraud, money laundering, and false claims. Torres moved to dismiss the indictments, arguing that the claims therein were time-barred under 18 U.S.C. § 3282, which provides for a five-year statute of limitations.

In support of his motion to dismiss, Torres argued that the Isle of Man took "final action" on November 12, 1999, the date of its first response to the government's request for evidence. Hence, he argued that the government had until May 5, 2000 to indict him for the crimes alleged in the original indictment, as those crimes were completed no later than December 30, 1994 (the date Garces College closed), and until June 28, 2000 to file its superseding indictment, as the last overt act in support of the superseding indictment occurred on February 23, 1995 (the date of the alleged transfer of funds from Garces College to the individual accounts).5 Accordingly, Torres argued that because the original indictment was returned on June 16, 2000 and the superseding indictment was returned on June 29, 2000, both were untimely and the charges therein should be dismissed.

The district court disagreed, however, finding "that `final action' on the request was not taken until March 8, 2000, and that the statute of limitations was therefore tolled for a period of 242 days, and the charges contained in the indictment were brought within the period of the limitation." Subsequently, Torres entered into a plea agreement in which he pled guilty to one count of conspiracy to commit money laundering, but preserved his right to appeal the district court's denial of his motion to dismiss the indictment. This appeal followed.


The determination of what constitutes "final action" for purposes of § 3292 is a mixed question of law and fact. See United States v. Meador, 138 F.3d 986, 991 (5th Cir.1998) (applying a mixed standard of review to its determination of what constitutes "final action" under § 3292). While "[w]e ... review the district court's conclusions of law de novo," we review its determination of the underlying facts and circumstances for clear error. Miles v. Naval Aviation Museum Found., Inc., 289 F.3d 715, 720 (11th Cir.2002).6

Our determination of what constitutes "final action" under § 3292 begins with the language of the statute itself. See Fed. Reserve Bank of Atlanta v. Thomas, 220 F.3d 1235, 1239 (11th Cir.2000) (stating that "the starting point for all statutory interpretation is the language of the statute"). Under § 3292, the government may apply, ex parte, for suspension of the statute of limitations when it seeks evidence located in a foreign country. See 18 U.S.C. § 3292. The statute provides that [u]pon 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.

Id. § 3292(a)(1). Subject to guidelines set forth in § 3292(c), the tolling of the statute "begin[s] on the date on which the official request is made and end[s] on the date on which the foreign court or authority takes final action on the request." Id. § 3292(b) (emphasis added). Significantly, however, the statute does not define "final action." Moreover, when read in its entirety, the statute does not provide any guidance as to when "final action" occurs. See CBS Inc. v. PrimeTime 24 Joint Venture, 245 F.3d 1217, 1225 (11th Cir.2001) (providing that when the plain language of a statute does not resolve the meaning of a statutory phrase, courts should "focus[] on the broader, statutory context" before turning to extrinsic evidence).

As the plain language of the statute itself does not resolve the ambiguity of the phrase "final action," we turn to the legislative history for guidance. Thomas, 220 F.3d at 1239 (providing that when "the statutory language is ambiguous ... courts may examine extrinsic materials, including legislative history, to determine Congressional intent"). In looking to the legislative history, we "`consider the purpose, the subject matter and the condition of affairs which led to its enactment, and so construe it as to effectuate and not destroy the spirit and force of the law and not to render it absurd.'" United States v. DBB, Inc., 180 F.3d 1277, 1283 (11th Cir.1999) (quoting Lambur v. Yates, 148 F.2d 137, 139 (8th Cir.1945)).

Our review of the legislative history provides some guidance. Indeed, the purpose of § 3292 "is to make foreign-kept business records more readily admissible into evidence in criminal trials in United States courts and to extend statute of limitation and Speedy Trial Act deadlines when evidence located in foreign countries must be obtained." H.R.Rep. No. 98-907, at 2 (1984), reprinted in 1984 U.S.C.C.A.N. 3578, 3578. The statute furthers an important law enforcement objective. Congress was prompted to enact § 3292 as part of the Comprehensive Crime Control Act of 1984 by "[t]he [increasing] use of offshore banks to launder the proceeds of criminal activities" and the difficulty that federal prosecutors were having "in obtaining records from those banks in both the investigative and trial stages of a prosecution." Id. As the procedures to obtain such evidence "generally take a considerable period of time to complete," efforts to recover evidence located in foreign countries often resulted in statute of limitations problems. Id. at 2-3, reprinted in 1984 U.S.C.C.A.N. at 3578-79. Thus, in enacting § 3292, Congress...

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