Last week, John O’Shea asked a federal court in Houston to dismiss the FCPA case against him. He said the government didn’t indict him within the statute of limitations period.
For FCPA offenses, the deadline to indict a defendant is normally five years from when the offense occurred. But it can be stretched under 18 U.S.C. § 3292 to as much as eight years when the DOJ has to gather evidence from other countries.
In O’Shea’s case, the DOJ needed evidence from Mexico and Germany, so it asked the court for an extension of the statute of limitations.
The tolling begins after an official request by the DOJ to the foreign government (and a ruling by the U.S. court on the presence of the foreign evidence). It ends when the foreign authority takes ‘final action’ on the request.
If the ‘final action’ by the foreign country occurs before the normal statute of limitations expires (five years), then the suspension period can’t be more than six months. If the ‘final action’ happens after the normal statute of limitations, then the suspension can stretch up to three years.
Who determines when the foreign government has taken ‘final action?’ That’s the question O’Shea and the DOJ are arguing about.
In a filing last week, he said the date of ‘final action’ under 18 U.S.C. §3292 can be determined only by the foreign government and not the DOJ. But in his case, he said, the DOJ tried to establish by itself that the Mexican and German governments hadn’t taken any ‘final action.’
[The DOJ] — instead of the Mexican or German authorities — represented that no final action occurred but failed to provide any supporting documentation that it had not yet received a dispositive response by the Mexican and German authorities.
. . . As a result, Mr. O’Shea has no way of knowing when or if the government received a notice of final action from the Mexican and German authorities within the five-year statute of limitations period. This information is material because if the government received notice of final action during the normal five-year statute of limitations period, then it may have filed the indictment in an untimely manner.
There was a similar argument in the Esquenazi (Haiti telco) case. The defendants lost and were convicted earlier this month.
The date for a hearing on O’Shea’s motion to dismiss hasn’t been set. His trial is scheduled to start in October.
Download John O’Shea’s motion to dismiss the indictment for failure to properly toll the statute of limitations under 18 U.S.C. § 3292 here.