Violations of 18 U.S.C. 1956, 1957, 1001 and 26 U.S.C. 7201, 7206, Grand Jury 92-1, attached to the Government's Motion for Reconsideration. This investigation was ongoing at the time the foreign evidence request was made on October 29, 1992.
The second major constraint is the foreign evidence request itself. While it would be unreasonably formalistic as well as unnecessary to impose a requirement that the government list by citation the statutes that may have been violated, the request for evidence must nevertheless be reasonably specific in order to elicit evidence of the alleged violations under investigation by the grand jury.
The official request of October 29, 1992, sought foreign evidence related to money laundering, conflicts of interest, bribery or gratuity and foreign financial transactions. Among the evidence sought was bank records. This request was reasonably specific to elicit evidence probative of the tax violations then under investigation by the grand jury, and it was, therefore, effective to toll the statutes of limitations for those offenses. Listing those offenses by statutory citation would do nothing to facilitate the foreign evidence request, and, most importantly, it is not required by 18 U.S.C. § 3292.
The Memorandum Opinion and Order of September 24, 1996, tolled the statutes of limitations based upon the March 10, 1993, letter to Bermuda. That opinion will be vacated. For the reasons expressed above, the foreign evidence request to the United Kingdom on October 29, 1992, was sufficient to suspend the statutes of limitations for the tax counts: Count II was suspended with approximately thirteen months and seventeen days remaining; Count III was suspended with approximately five months and seventeen days remaining and Counts IV and V were suspended with approximately eight months and twenty-two days remaining. Those periods remained suspended until the United Kingdom took final action on July 4, 1995. The Indictment was returned on December 10, 1993, within the time remaining for each count.
Defendant James Neill seeks reconsideration and dismissal of Count II on two grounds. First, he argues that 18 U.S.C. § 3292 is person-specific as well as offense-specific: because government never made a formal application to suspend the statute of limitations as to him, Chief Judge Penn never suspended the statutes of limitations as to him and the remaining count, Count II, is therefore time barred. Second, he contends that the official request for foreign evidence made to the Government of Bermuda on March 10, 1993, did not request evidence as to him. Since an official request for evidence triggers the suspension, the statute of limitations as to him was never tolled and Count II is time-barred.
Defendant James Neill's first argument fails and, in view of the Court's reasoning outlined above, the second argument is moot because the Court's opinion is no longer based on the premise that the official request to Bermuda triggered the suspension under 18 U.S.C. § 3292.
The first argument is unpersuasive, because while the plain text of 18 U.S.C. § 3292 is offense-specific, it does not impose the same limitations as to persons. A 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." 18 U.S.C. § 3292(a) (emphasis added).
For whatever reason, Congress did not impose the words of limitation that Defendant James Neill seeks in the statute. This omission does not, however, grant the government the unbridled discretion that the defendants fear. The government can only request that statutes of limitation be tolled for offenses under investigation by the grand jury; and such tolling can only be triggered through official requests for foreign evidence that are sufficiently specific. See supra. Moreover, the government has no control over who might be involved in the offense under investigation. A foreign evidence request for offenses under investigation may identify persons who are involved in the offenses, but who were previously unknown to the government. In 18 U.S.C. § 3292, Congress focused on the offense, not the offender. Contrary to the statute's text and its underlying purpose, Defendant James Neill's interpretation would penalize the government for a lack of omniscience as to who was involved in offenses under investigation.
Both defendants seek reconsideration on another ground, challenging the Court's determination that final action occurred on July 4, 1995, when the United Kingdom took final action on the last official request for foreign evidence. See Neill, 940 F. Supp. 332, 1996 WL 551437, supra, *6. Instead, the defendants argue that final action occurred on September 7, 1993, when Bermuda first responded to the United States' request.
In light of the Court's ruling on reconsideration, the Bermuda request is no longer relevant to either triggering the suspension period or terminating it. The October 29, 1992, letter to the United Kingdom triggered the period, and the suspension ended on the date on which the United Kingdom took final action: July 4, 1995. See 18 U.S.C. § 3292(b); United States v. Bischel, 61 F.3d 1429, 1434 (9th Cir. 1995). The defendants' motions will be denied.
Accordingly, for the reasons stated above, it is
ORDERED that the Memorandum Opinion and Order of September 24, 1996, is vacated; it is
FURTHER ORDERED that the government's motion for reconsideration is granted and the defendants' motions are denied; and it is
FURTHER ORDERED that Counts III, IV and V are reinstated.
IT IS SO ORDERED.
November 26, 1996.
JOYCE HENS GREEN
United States District Judge