In Re Grand Jury Investigation, 3 F. Supp. 2d 82 (D. Mass. 1998)

YOUNG, District Judge.

Purporting to act pursuant to 18 U.S.C. § 3292, the United States Attorney has applied ex parte for an order suspending certain statutes of limitation as to certain individuals or entities. Unfamiliar with this procedure, the Court has reviewed the eight reported decisions that refer to this statute. See United States v. Bischel, 61 F.3d 1429 (9th Cir. 1995); United States v. Roshko, 969 F.2d 9 (2d Cir.1992); Fraser v. United States, 834 F.2d 911 (11th Cir.1987); United States v. Miller, 830 F.2d 1073 (9th Cir. 1987); United States v. Davis, 767 F.2d 1025 (2nd Cir.1985); United States v. Neill, 952 F. Supp. 831 (D.D.C.1996); United States v. Neill, 940 F. Supp. 332 (D.D.C.1996); United States v. Baron, 1994 WL 63251 (S.D.N.Y. Feb. 18, 1994). From this research it appears that the Ninth Circuit, over a due process challenge, has upheld the constitutionality of section 3292, Bischel, 61 F.3d at 1434-35, and at least one district court has granted an application such as this on an ex parte basis. Neill, 940 F. Supp. at 335.

Nothing in section 3292, however, expressly contemplates secretly extending certain statutes of limitation as to certain individuals. Such a course would implicate due process concerns that the Ninth Circuit did not confront in Bischel. 61 F.3d at 1434-35. Moreover, this Court generally eschews ex parte practice whenever possible, see, e.g., United States v. Owens, 98 F.3d 1333 (1st Cir.1996) (unpublished table decision), since action ex parte so fundamentally undercuts the values secured by the adversary process.

Accordingly, this application is DENIED without prejudice to its renewal after notice to the targets of the grand jury investigation of the statutes of limitation sought to be extended. This Court will then afford all parties an opportunity to be heard. To avoid forum shopping, this Court will retain jurisdiction on this matter.

It is SO ORDERED.