How long is the statute of limitations for FCPA offenses?
A lot of people have asked since Walmart de Mexico’s news broke.
Answer: The statute of limitations for the FCPA is five years.
(It can be extended at the request of the DOJ for three more years to give the government time to gather foreign evidence; but we don’t need to talk about that yet.)
The five-year statute of limitations means formal prosecution must be commenced, usually by return of an indictment or filing of an information, within five years after the completion of the offense.
Does that mean Walmart and its executives are off the hook if the alleged bribery happened in 2005 and 2006, as reported?
Not at all. Although the statute of limitations may bar some substantive FCPA counts, most FCPA prosecutions also involve the federal conspiracy statute, 18 U.S.C. § 371. For conspiracy, the statute of limitations can reach back to criminal behavior more than five years old if the conspiracy continued at any time during the past five years.
Walmart’s FCPA disclosure appeared in an SEC filing on December 8, 2011. Did a conspiracy to conceal the bribery continue until last December — that is, until Walmart learned what the New York Times was about to report?
Here’s what the U.S. Attorneys Criminal Resource Manual says:
Conspiracy is a continuing offense. For statutes such as 18 U.S.C. § 371, which require an overt act in furtherance of the conspiracy, the statute of limitations begins to run on the date of the last overt act. See Fiswick v. United States, 329 U.S. 211 (1946); United States v. Butler, 792 F.2d 1528 (11th Cir. 1986).
FCPA conspiracy convictions, like substantive counts, carry a maximum penalty of five years in prison and a fine of the greater of $250,000 or twice the gross gain or loss from the scheme.
In addition to conspiracy, the government sometimes uses other related offenses in FCPA prosecutions against companies or individuals. They might include the Travel Act, obstruction, making false statements to the government, aiding and abetting, and money laundering.
Each of those share the five-year statute of limitations and often take place years after bribes are allegedly paid. The related offenses can also be used in connection with the federal conspiracy statute, again extending the statute of limitations to any behavior that continued during any part of the prior five years.