United States v. Kozeny (Bourke), No. 07-3107 (2d Cir. 2008)

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The court issued a subsequent related opinion or order on October 9, 2008.

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07-3107-cr United States v. Kozeny (Bourke) 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2007 4 (Argued: October 18, 2007 Decided: August 29, 2008) 5 Docket No. 07-3107-cr 6 ------------------------------------- 7 UNITED STATES OF AMERICA, 8 Appellant, 9 - v - 10 VIKTOR KOZENY, DAVID PINKERTON, 11 Defendants,* 12 FREDERIC BOURKE JR., 13 Defendant-Appellee. 14 ------------------------------------- 15 Before: 16 SACK, KATZMANN, and HALL, Circuit Judges. Appeal by the government from a judgment of the United 17 States District Court for the Southern District of New York 18 (Shira A. Scheindlin, Judge) dismissing several counts of an 19 indictment. * The district court concluded that an application Viktor Kozeny and David Pinkerton were both named as defendants in the indictment. Kozeny, a resident of the Bahamas, is appealing an order committing him to extradition to the United States and is therefore not a party to this appeal. See United States v. Kozeny, No. 1:05-cr-00518-SAS (S.D.N.Y. Apr. 17, 2007) (minute entry). Pinkerton was initially an appellant, but the government withdrew all charges against him after this appeal was argued. See United States v. Kozeny, No. 1:05-cr-00518-SAS (S.D.N.Y. July 2, 2008) (order of nolle prosequi as to Pinkerton). The government's appeal as to Pinkerton was withdrawn by stipulation filed July 16, 2008. 1 pursuant to 18 U.S.C. § 3292 to suspend the running of a statute 2 of limitations pending a request for foreign evidence must be 3 filed before the statute of limitations expires. 4 Affirmed. 5 6 7 8 9 10 11 12 13 14 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. 15 16 17 18 19 20 21 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 DefendantAppellee. 22 23 SACK, Circuit Judge: The government appeals from a judgment of the United 24 States District Court for the Southern District of New York 25 granting defendant-appellee Frederic Bourke Jr.'s motion to 26 dismiss as to most of the counts on which he had been indicted. 27 The court concluded that the charges against him in those counts 28 were barred by the statute of limitations. 29 previously applied for, and had been granted, a suspension of the 30 applicable statute of limitations pursuant to 18 U.S.C. § 3292. 31 The district court held that this suspension was invalid because 32 the government's application was filed after the limitations 33 period for the crimes under investigation had expired. 2 The government had The court 1 concluded that although the statutory text was ambiguous, the 2 legislative history of section 3292, the structure of the 3 provision, the policy rationale behind statutes of limitations, 4 and the doctrine of constitutional avoidance all pointed toward 5 an interpretation of section 3292 that does not permit the 6 government to apply to suspend a statute of limitations after the 7 limitations period has expired. 8 9 Unlike the district court, we do not view the text of section 3292 as ambiguous. We conclude that the plain language 10 of the provision, and the structure and content of the law by 11 which it was enacted, require the government to apply for a 12 suspension of the running of the statute of limitations before 13 the limitations period expires. 14 15 We therefore affirm. BACKGROUND In a sealed indictment returned on May 12, 2005, 16 defendant-appellee Frederic Bourke Jr. was charged with five 17 counts of violating the Foreign Corrupt Practices Act (the 18 "FCPA"), 15 U.S.C. § 78dd-1 et seq.; two counts of violating the 19 Travel Act, 18 U.S.C. § 1952; one count of conspiracy to violate 20 the FCPA and the Travel Act, 18 U.S.C. § 371; two counts of money 21 laundering, 18 U.S.C. § 1956; one count of conspiracy to commit 22 money laundering, 18 U.S.C. § 371; and one count of making false 23 statements to FBI agents in violation of 18 U.S.C. § 1001. 24 charges all relate to an alleged scheme to bribe senior 25 government officials in Azerbaijan in an effort to ensure the 3 The 1 privatization of the State Oil Company of the Azerbaijan Republic 2 and to guarantee that Bourke profited from this privatization. 3 The parties do not dispute that 18 U.S.C. § 3282(a) 4 establishes the statute of limitations for all of the crimes that 5 Bourke is alleged to have committed. 6 "[e]xcept as otherwise expressly provided by law, no person shall 7 be prosecuted, tried, or punished for any offense, not capital, 8 unless the indictment is found or the information is instituted 9 within five years next after such offense shall have been 10 committed." 11 Under that provision, Id. The counts charging violations of the Travel Act and 12 the money laundering statute, and four of the five counts 13 charging violations of the FCPA, allege conduct that occurred no 14 later than early July 1998. 15 suspension of the statute of limitations, then, the five-year 16 limitations period for each of these offenses would have expired 17 in early July 2003. 18 FCPA alleges conduct that occurred in September 1998. 19 statute of limitations for that charged crime would have run in 20 September 2003. 21 Barring any tolling or other The fifth count charging violations of the The The conduct related to the charge of making false 22 statements occurred in or before May 2002. 23 or other suspension of the statute of limitations, the five-year 24 limitations period for that offense would have run in or before 25 May 2007. 4 Barring any tolling 1 Finally, the conduct related to the conspiracy charges 2 continued until September 1998 for the money laundering 3 conspiracy and until February 1999 for the FCPA and Travel Act 4 conspiracy. 5 statute of limitations, the five-year limitations periods for 6 these offenses would have expired in September 2003 and February 7 2004, respectively. 8 9 Barring any tolling or other suspension of the Prior to the indictment, the government submitted requests to the governments of the Netherlands and Switzerland 10 for evidence relating to activity it was investigating. Each 11 request was made pursuant to a treaty on mutual legal assistance 12 ("MLAT"). 13 U.S.-Neth., June 12, 1981, 1359 U.N.T.S. 209; Treaty on Mutual 14 Assistance in Criminal Matters, U.S.-Switz., May 25, 1973, 1052 15 U.N.T.S. 61. 16 29, 2002; the request to Switzerland on January 13, 2003. 17 July 21, 2003, the government applied for an order under 18 18 U.S.C. § 3292 to suspend the running of the statute of 19 limitations based on its MLAT requests. 20 statute of limitations had run for all of the crimes under 21 investigation other than the false statements charges, the 22 conspiracy charges, and one FCPA count. See Treaty on Mutual Assistance in Criminal Matters, The request to the Netherlands was made on October 23 Section 3292 provides: 24 25 26 27 28 At that point the (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 5 On 1 2 3 4 5 6 7 8 9 10 11 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. 12 13 14 (2) The court shall rule upon such application not later than thirty days after the filing of the application. 15 16 17 18 19 20 (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. 21 22 23 (c) The total of all periods of suspension under this section with respect to an offense - 24 (1) shall not exceed three years; and 25 26 27 28 29 30 (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. 31 32 33 34 35 36 37 38 39 40 (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. 41 Daniels, Judge) entered a sealed order suspending the statute of 42 limitations for the offenses under investigation. 6 Pursuant to 18 1 U.S.C. § 3292(b), the district court ordered that "the periods of 2 suspension shall begin on the dates on which the official 3 requests were made and shall end on the date on which the 4 authorities of the Governments of the Netherlands and the Swiss 5 Confederation take final action on the official requests, such 6 periods not to exceed a total of three years." 7 authorities produced documents in response to the MLAT on several 8 dates, the last of which was September 10, 2004. 9 authorities produced documents on November 8, 2005. The Swiss The Dutch As noted, 10 the indictment was returned on May 12, 2005, after the date on 11 which Switzerland took final action but before the date on which 12 the Netherlands took final action. 13 running of the statute of limitations was to "end on the date on 14 which the authorities of the Governments of the Netherlands and 15 the Swiss Confederation [took] final action" (emphasis added), at 16 the time of the indictment, the statute of limitations was still 17 ostensibly suspended on account of the outstanding MLAT request 18 to the Netherlands. 19 Because the suspension of the On October 20, 2006, Bourke filed a motion to dismiss 20 all but the false statements charges on statute of limitations 21 grounds pursuant to Rule 12 of the Federal Rules of Criminal 22 Procedure. 23 government to apply for a suspension of the statute of 24 limitations after it has already expired. 25 (Shira A. Scheindlin, Judge) granted Bourke's motion, dismissing 26 all but the false statements charges. He argued that section 3292 does not permit the 7 The district court The district court held 1 that although the statutory text was "ambiguous," the legislative 2 history of section 3292, the structure of the provision, the 3 policy rationale behind statutes of limitations, and the doctrine 4 of constitutional avoidance all pointed toward an interpretation 5 that does not permit the government to apply to suspend the 6 statute of limitations after it has expired. 7 On July 16, 2007, the district court reinstated all of 8 the conspiracy charges and one FCPA count against Bourke on the 9 grounds that the statute of limitations had not run for these 10 charges when the section 3292 application was filed. 11 is not before us on appeal. 12 That order The government appeals the district court's judgment 13 insofar as it dismissed charges against Bourke on statute of 14 limitations grounds. DISCUSSION 15 16 17 Federal court interpretations of 18 U.S.C. § 3292 are sparse.1 Only two decisions -- neither of them ours -- speak to 1 See United States v. Atiyeh, 402 F.3d 354, 362-67 (3d Cir.) (application must be filed before government has received all requested foreign evidence), cert. denied, 546 U.S. 1068 (2005); United States v. Trainor, 376 F.3d 1325, 1330 (11th Cir. 2004) (interpreting "preponderance of the evidence" standard in subsection 3292(a)); United States v. DeGeorge, 380 F.3d 1203, 1215 (9th Cir. 2004) ("'Final action' for purposes of § 3292 means a dispositive response from the foreign sovereign . . . ." (citations and internal quotation marks omitted)); United States v. Torres, 318 F.3d 1058, 1063 (11th Cir.) (same), cert. denied, 540 U.S. 827 (2003); DeGeorge v. U.S. Dist. Court for the Cent. Dist. of Cal., 219 F.3d 930, 937, 939-41 (9th Cir. 2000) (holding, under a standard of review for mandamus petitions, inter alia, that district court did not clearly err in concluding that section 3292 allows ex parte applications and does not require that a grand jury be impaneled and hearing evidence on 8 1 the question presented here. Both, United States v. Bischel, 61 2 F.3d 1429 (9th Cir. 1995), and United States v. Neill, 940 F. 3 Supp. 332 (D.D.C.), vacated on other grounds, 952 F. Supp. 831 4 (D.D.C. 1996), found that section 3292 imposed no requirement 5 that the government apply for a suspension of the statute of 6 limitations before the statute of limitations has run. 7 disagree. We 8 I. Standard of Review 9 This court reviews a district court's statutory 10 interpretation de novo. 11 United States v. Rood, 281 F.3d 353, 355 (2d Cir. 2002). 12 II. Principles of Statutory Construction 13 Statutory construction "must begin with the language 14 employed by Congress and the assumption that the ordinary meaning 15 of that language accurately expresses the legislative purpose." 16 United States v. Albertini, 472 U.S. 675, 680 (1985) (quoting 17 Park 'N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 194 18 (1985)). 19 function of the courts is to enforce it according to its terms.'" 20 United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989) Where the statute's language is "plain, 'the sole the target offenses at time of application); United States v. Meador, 138 F.3d 986, 992 (5th Cir. 1998) (holding that "a determination of when 'final action' has been taken by a foreign government, within the meaning of § 3292(b), must turn on whether a dispositive response to an official request for evidence from our government has been obtained"); United States v. Miller, 830 F.2d 1073, 1075-76 (9th Cir. 1987) (section 3292 is retroactive as to offenses committed before its enactment and does not require the government to file an application before obtaining evidence), cert. denied, 485 U.S. 1033 (1988). 9 1 (quoting Caminetti v. United States, 242 U.S. 470, 485 (1917)); 2 see also Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253-54 (1992) 3 ("We have stated time and again that courts must presume that a 4 legislature says in a statute what it means and means in a 5 statute what it says there."). 6 Statutory enactments should, moreover, be read so as 7 "to give effect, if possible, to every clause and word of a 8 statute." 9 United States v. Menasche, 348 U.S. 528, 538-39 (1955)); see also Duncan v. Walker, 533 U.S. 167, 174 (2001) (quoting 10 United States v. Nordic Vill., Inc., 503 U.S. 30, 36 (1992) 11 (noting "settled rule that a statute must, if possible, be 12 construed in such fashion that every word has some operative 13 effect"); United States v. Anderson, 15 F.3d 278, 283 (2d Cir. 14 1994) ("[C]ourts will avoid statutory interpretations that render 15 provisions superfluous." (citations omitted)). 16 act' rule of statutory construction exhorts us to read a section 17 of a statute not 'in isolation from the context of the whole Act' 18 but to 'look to the provisions of the whole law, and to its 19 object and policy.'" 20 (2d Cir. 2000) (quoting Richards v. United States, 369 U.S. 1, 11 21 (1962) (internal quotation marks omitted)), cert. denied, 533 22 U.S. 904 (2001). 23 And "[t]he 'whole United States v. Pacheco, 225 F.3d 148, 154 If the text of the statute itself is not clear, 24 however, a court applying the statute may consult the legislative 25 history to discern "the legislative purpose as revealed by the 26 history of the statute." Concrete Pipe & Prods. of Cal., Inc. v. 10 1 Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602, 627 2 (1993). 3 purpose so long as the congressional language does not itself bar 4 that result." 5 (2000) (citations omitted). 6 "Our obligation is to give effect to congressional Johnson v. United States, 529 U.S. 694, 710 n.10 When interpreting a code provision related to a statute 7 of limitations, we adhere to "the principle that criminal 8 limitations statutes are to be liberally interpreted in favor of 9 repose." Toussie v. United States, 397 U.S. 112, 115 (1970) 10 (citations and internal quotation marks omitted); accord United 11 States v. Podde, 105 F.3d 813, 819-20 (2d Cir. 1997). 12 comports with the policy rationale behind such statutes by (1) 13 "protect[ing] individuals from having to defend themselves 14 against charges when the basic facts may have become obscured by 15 the passage of time," (2) "minimiz[ing] the danger of official 16 punishment because of acts in the far-distant past," and (3) 17 "encouraging law enforcement officials promptly to investigate 18 suspected criminal activity." 19 20 21 This rule Toussie, 397 U.S. at 114-15. III. The Meaning of Section 3292 A. "Plain Language" Bourke argues that, under section 3292, an application 22 to "suspend the running" of the statute of limitations must be 23 filed before the statute of limitations has expired. 24 § 3292(a)(1). 25 timing of an application is constrained only by the requirement 26 that it be filed "before return of an indictment." 18 U.S.C. The government maintains to the contrary that the 11 Id. Both 1 parties argue that their interpretation of section 3292 is 2 required by the language of the statute. 3 Subsection 3292(a)(1) states: 4 5 6 7 8 9 10 11 12 13 14 15 16 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. 17 Id. (emphasis added). We think that the words "suspend" and 18 "running" require that we agree with Bourke. 19 It seems to us unnecessary to canvas entries in general 20 dictionaries,2 or specialized legal ones,3 or even to inquire into 21 the case law surrounding the "Suspension Clause,"4 to conclude 22 that "to suspend" is to cause to stop, at least for a time, 23 something that is otherwise in operation or effect. 24 statute of limitations is only in operation or effect if it is 25 running. 26 limitations cannot be "running" if it has already "run," i.e., if And a It is equally obvious, we think, that a statute of 2 See, e.g., Random House Webster's Unabridged Dictionary 1917 (2d ed. 2001) (defining "suspend" as "to cause to cease for a time from operation or effect"). 3 See, e.g., Black's Law Dictionary 1487 (8th ed. 2004) (defining "suspend" as "[t]o interrupt; postpone; defer"). 4 U.S. Const. art. I, § 9, cl. 2 ("The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."). 12 1 it has expired at the end of the prescribed period.5 2 that a district court can "suspend the running of [a] statute of 3 limitations," 18 U.S.C. § 3292(a)(1), only if the limitations 4 period has not yet expired. 5 statute of limitations would be to "revive" it. 6 upon which to read the word "suspend" in section 3292 to include 7 the distinct concept of revival.6 It follows To restart the running of an expired We see no basis 8 The government urges upon us the opposite conclusion by 9 arguing that the only time limit explicitly set by the statute is 10 the requirement that the application be "filed before return of 11 an indictment." 12 filed before the return of the indictment and a requirement that 13 it be filed before the statute of limitations runs are not 14 mutually exclusive. 15 prosecution, an indictment must, of course, be handed up before 16 the statute of limitations expires. 17 provision establishing the statute of limitations for the crimes Id. But a requirement that the application be In the normal course of a criminal Indeed, the same code 5 See Black's Law Dictionary 1361 (8th ed. 2004) (defining "run" as having "expire[d] after a prescribed period"). 6 Compare Stogner v. California, 539 U.S. 607, 632-33 (2003) (concluding that "a law enacted after expiration of a previously applicable limitations period violates the Ex Post Facto Clause when it is applied to revive a previously time-barred prosecution" (emphasis added)), with Bridges v. United States, 346 U.S. 209, 222 (1953) (concluding that 18 U.S.C. § 3287 "suspend[s] the running of . . . [a] statute of limitations . . . only where fraud against the Government is an essential ingredient of the crime [alleged]" (emphasis added)); see also Black's Law Dictionary 1346 (8th ed. 2004) (defining "revival" as, inter alia, "the act of restoring . . . validity or legal force"). 13 1 at issue in this appeal defines that time period by reference to 2 the window in which such an indictment must be returned. 3 U.S.C. § 3282 (providing that "[e]xcept as otherwise provided by 4 law, no person shall be prosecuted, tried, or punished for any 5 offense, not capital, unless the indictment is found or the 6 information is instituted within five years after such offense 7 shall have been committed"). 8 precedes the expiration of the statute of limitations period, 9 then, the words "before return of an indictment" actually imply a 10 See 18 Because indictment ordinarily time frame before the statute of limitations has run. 11 The government's reliance on United States v. Miller, 12 830 F.2d 1073 (9th Cir. 1987), cert. denied, 485 U.S. 1033 13 (1988), is misplaced. 14 itself specifies the only relevant time the application must be 15 made: 'before return of an indictment.'" 16 U.S.C. § 3292(a)(1)). 17 resolve the question of whether a section 3292 application can be 18 filed after evidence from a foreign government has already been 19 received, not whether such an application can be filed after the 20 statute of limitations has run. 21 application in Miller was filed before the statute of limitations 22 would have otherwise expired. 23 does not speak to the question posed here.7 The Miller court said that "[t]he statute Id. at 1076 (quoting 18 However, the Miller court sought to Indeed, the section 3292 Id. at 1075. 7 Miller, therefore, For the same reasons we think Miller inapposite, we think that Bischel and Neill, which relied on Miller, carry little persuasive force. Like the government, the Bischel and Neill courts reasoned that because, according to Miller, a section 3292 14 1 The government's final textual argument looks to 2 subsection 3292(b), which provides that the "period of 3 suspension . . . shall begin on the date on which the official 4 request [for evidence from the foreign nation] is made and end on 5 the date on which the foreign court or authority takes final 6 action on the request." 7 argues that because the period of suspension begins "on the date 8 the official request [for evidence] is made" and not on the date 9 that the application for a suspension is granted, section 3292 18 U.S.C. § 3292(b). The government 10 contemplates retrospective tolling.8 11 maintains that there is nothing in the language of subsection 12 3292(b) to suggest that such tolling cannot be effective even 13 after the limitations period has run. 14 the government relies on Bischel and Neill, which cite subsection The government further In making this argument, application is limited only by the requirement that it be filed before the return of an indictment, see Miller, 830 F.2d at 1076, it need not be filed before the statute of limitations runs. See Bischel, 61 F.3d at 1434; Neill, 940 F. Supp. at 336. However, because Miller did not consider whether an application must be filed before the statute of limitations has expired, the Bischel and Neill courts' reliance on that decision was misplaced. 8 The court must rule upon an application filed under section 3292 "not later than thirty days after the filing of the application." 18 U.S.C. § 3292(a)(2). Accordingly, there could be a scenario in which the government files an application under section 3292 before the statute of limitations has expired but the court does not rule on that application until after the expiration of the limitations period. Because we are not confronted with that scenario in the instant case, we address only whether an application under section 3292 must be filed before the statute of limitations has expired and not whether the district court must also rule on such application before expiration of the limitations period. 15 1 3292(b) for the same proposition. 2 Neill, 940 F. Supp. at 336. 3 See Bischel, 61 F.3d at 1434; We find this reasoning unpersuasive. The fact that the 4 statute requires a retroactive start date for the suspension 5 period does not speak to whether applications for a suspension 6 must be filed before the statute of limitations has otherwise 7 run. 8 that applications to suspend the statute of limitations be filed 9 before the statute of limitations has expired and also requiring 10 that the starting date of the suspension period be backdated to 11 the day on which the request for foreign evidence was made. 12 interpreting a statute, we are required "to give effect, if 13 possible, to every clause and word of a statute," Duncan, 533 14 U.S. at 174 (citations and internal quotation marks omitted), and 15 to "avoid statutory interpretations that render provisions 16 superfluous," Anderson, 15 F.3d at 283. 17 the language of subsection 3292(b), which requires the court to 18 start the suspension period retroactively on the date the 19 evidence was requested, together with subsection 3292(a), which, 20 as we have said, contemplates that a statute of limitations be 21 "running" at the time an application for suspension is filed. 22 will not adopt a statutory interpretation that would render 23 superfluous the timing provision of subsection 3292(a) when it 24 can be read consistently with the retroactive start date 25 requirement of subsection 3292(b). We find nothing inconsistent about section 3292 requiring 16 When We therefore consider We 1 We therefore conclude that the "plain language" of 18 2 U.S.C. § 3292 requires that an application to suspend the running 3 of the statute of limitations be filed before the limitations 4 period has expired.9 5 B. The "Whole Act" Rule 6 We also reject the government's reading of section 3292 7 on account of the "whole act" rule, which "exhorts us to read a 8 section of a statute not 'in isolation from the context of the 9 The legislative history of section 3292 is meager. It consists of a single House Report. H.R. Rep. 98-907 (1984), reprinted in 1984 U.S.C.C.A.N. 3578. Referring broadly to the motivation for the Comprehensive Crime Control Act of 1984, the Report notes: The use of offshore banks to launder the proceeds of criminal activities and to evade taxes has become an increasing problem for federal prosecutors. . . . Once funds are traced to offshore banks, federal prosecutors face serious difficulties in obtaining records from those banks in both the investigative and trial stages of a prosecution. . . . The procedures that must be undertaken in other countries in order to obtain the records generally take a considerable period of time to complete. . . . The delays attendant in obtaining the records from other countries create both statute of limitation and Speedy Trial Act problems. If the records are essential to the bringing of charges, the delay in getting the records might prevent filing an information or returning an indictment within the time period specified by the relevant statute of limitation. Id. at 3578-79. "[W]e do not resort to legislative history . . . [when] a statutory text . . . is clear." Ratzlaf v. United States, 510 U.S. 135, 147-48 (1994). Having found such clarity in section 3292, we see no reason to depart from the general rule here. 17 1 whole Act' but to 'look to the provisions of the whole law, and 2 to its object and policy.'" 3 Richards, 369 U.S. at 11 (internal quotation marks omitted)), 4 cert. denied, 533 U.S. 904 (2001). 5 Pacheco, 225 F.3d at 154 (quoting Here, the relevant "whole act" is the Comprehensive 6 Crime Control Act of 1984, Pub. L. No. 98-473, tit. II, 98 Stat. 7 1837 (1984) (the "CCCA"). 8 Code by adding, inter alia, 18 U.S.C. § 3292, the statute at 9 issue on this appeal, and 18 U.S.C. § 3161(h)(9), a complementary 10 11 The CCCA amended the United States provision of the Speedy Trial Act. Section 3292, the statute we are examining, permits an 12 extension of the statute of limitations if a proper application 13 is "filed before return of an indictment." 14 § 3292(a)(1) (emphasis added). 15 a period of time after the return of the indictment within which 16 the trial of the defendant on criminal charges contained in that 17 indictment must begin -- subject to a variety of exclusions. 18 18 U.S.C. § 3161(c)(1). 19 Act by the CCCA was such an exclusion. 20 delay, not to exceed one year," 18 U.S.C. § 3161(h)(9), to "be 21 excluded . . . in computing the time within which the trial . . . 22 must commence," id. § 3161(h), if the district court finds that 23 "an official request, as defined in section 3292 of this title, 18 U.S.C. The Speedy Trial Act provides for See The provision added to the Speedy Trial 18 It permits a "period of 1 has been made for evidence" from a foreign country. 2 § 3161(h)(9).10 3 Id. Thus, when section 3292 is read alongside the CCCA's 4 complementary amendment to the Speedy Trial Act, the significance 5 of section 3292's phrase "before return of an indictment" is 6 clear. 7 request for foreign evidence before indictment, it can seek to 8 suspend the statute of limitations pursuant to section 3292. 9 it anticipates such a delay after the indictment is returned, but If the government anticipates a delay on account of a If 10 before trial, it can separately apply for relief under section 11 3161(h)(9) of the Speedy Trial Act. 12 serves as the dividing line between when the government can turn 13 to section 3292 and when, instead, it must turn to section 14 3161(h)(9). 15 contention, requiring that an application under section 3292 be 16 filed before the statute of limitations expires does not render 17 superfluous section 3292's requirement that the application be 18 filed before the indictment is returned.11 In other words, indictment Consequently, and contrary to the government's That requirement 10 This section does not require that the statute of limitations be suspended pursuant to section 3292 in order for the court to exclude time under the Speedy Trial Act. It requires only that, after indictment, a party be able to demonstrate that it has made the type of request for foreign evidence "defined in section 3292." 18 U.S.C. § 3161(h)(9). 11 Our interpretation of section 3292 is also consistent with internal Justice Department guidelines. A manual advises federal prosecutors: "Make sure you file [the section 3292 application] before the statute runs; don't wait until the foreign country responds to the request." Executive Office for United States Attorneys, Evidence for Experienced Criminal Litigators E-18 (1993). 19 1 remains fully relevant to the extent that it distinguishes 2 between when it is appropriate for a prosecutor to apply for 3 relief under section 3292 and when it is appropriate to seek 4 relief under section 3161(h)(9). 5 C. The Doctrine of Constitutional Avoidance 6 Neither party disputes the constitutionality of an 7 interpretation of section 3292 that requires an application to be 8 filed before the statute of limitations expires. 9 argues that an interpretation of section 3292 that permits an But Bourke 10 application to be filed after the statute of limitations has run 11 would violate the Ex Post Facto Clause and the Due Process 12 Clause. 13 we need not determine whether Bourke's constitutional arguments 14 have merit. 15 susceptible of two constructions, by one of which grave and 16 doubtful constitutional questions arise and by the other of which 17 such questions are avoided, our duty is to adopt the latter." 18 Jones v. United States, 529 U.S. 848, 857 (2000) (citations and 19 internal quotation marks omitted). 20 this principle alone requires the result we reach, this result 21 allows us to avoid close analysis of what is, at least, a non- 22 frivolous constitutional objection. Because we reject that interpretation of section 3292, We note, however, that "where a statute is CONCLUSION 23 24 25 Although we do not think that For the foregoing reasons, the judgment of the district court is affirmed. 20

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