Sunday, February 12, 2012

It Tolls for Thee

United States v. Knight, No. 09-5195-cr (2d Cir. February 1, 2012) (Walker, Straub, Livingston, CJJ)

While a Western District grand jury was investigating defendant’s involvement in a “high yield” investment scheme, the district court granted the government’s application pursuant to 18 U.S.C. § 3292 to toll the statute of limitations while it sought the assistance of Hungarian authorities in obtaining records relating to transfers of some of the scheme’s proceeds into Hungarian bank accounts. The circuit affirmed that order as a proper application of the tolling statute.

Under § 3292, the court must grant the government’s application and suspend the statute of limitations if the application asserts that evidence of an offense being investigated by a grand jury is in a foreign country and it reasonably appears, by a preponderance of the evidence, that such evidence has been officially requested.

The government satisfied the statute here. It gave the district court a copy of the government’s official request to Hungary, a transcript of a victim’s grand jury describing how he had been defrauded, and the affidavit of an FBI agent describing transfers of proceeds from a U.S. bank account to a Hungarian bank account.

The court rejected the defendant’s argument that, since the relevant Hungarian bank had offices in the United States, the records could have been obtained by subpoena. Nothing in § 3292 suggests that the tolling is limited to situations where the foreign evidence is obtainable only through diplomatic channels. Nor is does it matter that the evidence sought might be immaterial; as long as evidence of an offense is located abroad, the limitations period will be tolled, even if the grand jury would otherwise have sufficient evidence to indict.

Lastly, the court rejected the claim that the district court should not have acted on the application ex parte. The statute does not give the party whose statute of limitations is being suspended the right to notice or a hearing. To the contrary, grand jury proceedings are typically non-adversarial and secret.

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