The opinion of the court was delivered by: GREEN
On September 24, 1996, this Court dismissed Counts Three, Four and Five of the Indictment. The Court construed 18 U.S.C. § 3292 to suspend the statute of limitations only for those offenses for which foreign evidence had been officially, and specifically, requested. See United States v. Neill, 940 F. Supp. 332, 1996 WL 551437, *5 (D.D.C., Sept. 24, 1996). Based upon the statute's plain language, the Court held that 18 U.S.C. § 3292(a) is offense-specific.
Id. at *3. The Court determined that the United States did not make a sufficiently specific official request for foreign evidence regarding the tax offenses until March 10, 1993. Id. at *5. This official request tolled the statute of limitations as to both defendants, and the periods remained suspended until July 4, 1995, when the United Kingdom, the last foreign authority holding outstanding requests, took final action. Id. at *6. Count II was preserved because approximately nine months remained on its limitations period, but the Court held that Counts III, IV and V had expired and they were dismissed as time-barred.
This Court is one of few courts to have occasion to interpret the text of 18 U.S.C. § 3292, and she is the first court to be faced with the specific issues presented herein. The defendants' arguments for reconsideration are unpersuasive, but the United States has offered the Court additional information and presented a compelling argument as to the proper interpretation of the statute.
The United States seeks reconsideration on the grounds that the grand jury began investigating the tax offenses no later than September 25, 1992, and that its foreign evidence requests were sufficiently specific to suspend the statutes of limitations for the offenses charged. To demonstrate that a grand jury was in fact investigating tax offenses, the government has offered evidence that it did not include in its initial memorandum in opposition. The government argues that while 18 U.S.C. § 3292 requires that an official request for evidence be made to a foreign government, the statute imposes no specific requirements about the content of that request. To the extent that the content of a foreign evidence request is controlled by anything, the United States contends that it would be an agreement between the United States and the foreign sovereign.
The government's argument is compelling. The statute does not, as the government notes, impose any specific requirements regarding the precise content of foreign evidence requests. While the plain text of the statute is, as the Court has previously held, offense-specific, such specificity does not require that a foreign evidence request expressly list by citation the alleged statutory violations in order for a foreign evidence request to pass muster under 18 U.S.C. § 3292. To the extent this Court's previous opinion implied such a requirement, it will be, and hereby is, vacated. Nevertheless, the statute does not grant the government carte blanche to toll statutes of limitations. The first major constraint upon government discretion is the clear requirement that an offense be under investigation by a grand jury. That requirement is satisfied here. Based upon the government's submission, it is clear that a grand jury was investigating possible tax violations as of Friday, September 25, 1992. See In re Possible 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).