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Federal judge sets important limit to tolling a statute of limitations in FCPA case

Federal prosecutors in Texas learned recently that a request under a mutual legal assistance treaty, or MLAT, can toll a statute of limitations for only so long. The decision by Judge Kenneth M. Hoyt of the U.S. District Court in Houston came in a case stemming from a bribery scheme at a Venezuelan state-owned energy company. At issue was Paulo Jorge Da Costa Casqueiro Murta, a banker with dual Portuguese-Swiss citizenship accused by the U.S. government of helping launder the bribery proceeds.

According to Hoyt’s order, the case started with a U.S. Department of Homeland Security investigation in 2012. In 2014, the U.S. Department of Justice asked Swiss authorities, subject to an MLAT, for some banking records. A law, 18 U.S.C. § 3292, allows the DOJ to seek court orders that toll the relevant statute of limitations until an MLAT request is answered. In 2015, the DOJ received a tolling order.

After the Swiss fulfilled the request later that year, two defendants were indicted, and another four were charged on a host of FCPA violations and other offenses. More defendants were indicted in 2017.

The DOJ had obtained a second tolling order in January 2017, expected to last three years. In November 2017, the DOJ asked the Swiss authorities for information under what prosecutors called a “supplemental” MLAT request. In 2019, Murta was charged in a superseding indictment.

Murta challenged the indictment on several grounds, arguing that the 2017 tolling was improvidently granted. Last month, the judge agreed and dismissed four counts. “Importantly,” Hoyt wrote, “nothing in the statute permits the government to issue multiple MLATs simply as a tool to extend tolling.” 

Defense attorneys may potentially rely on this case to explore two arguments. First, per this case’s holding, the effect of MLAT tolling orders ends when these criteria are met:

  • Foreign authorities provide the information in the MLAT.
  • There is no confusion about the nature or scope of the MLAT.
  • The parties subject to the MLAT are indicted.

Second, MLAT tolling is offense-specific, not person-specific. Murta, the defendant, was not indicted in 2015 or 2017, nor was he a subject or target during the 2015 and 2017 indictments. The DOJ alleged in the 2019 superseding indictment that Murta was part of the same alleged criminal scheme as the 2015 and 2017 defendants and charged him with some of the same counts as the 2015 and 2017 defendants. The tolling orders and statute of limitations timetable that applied to the 2015 defendants, however, also applied to Murta because tolling orders are offense-specific, not person-specific. 

FCPA practitioners should analyze the MLAT tolling statute, 18 U.S.C. § 3292, to verify that court-issued MLAT tolling orders apply to their clients. 


Wifredo A. “Willy” Ferrer, pictured above left, is the former U.S. Attorney for the Southern District of Florida. He is the chair of Holland & Knight’s Global Compliance and Investigations Team and the executive partner of the firm’s Miami office. He focuses on internal corporate investigations, corporate compliance and training, and white-collar criminal defense.

Gary Klubok, above right, is an associate in Holland & Knight’s Miami office.  He is a certified anti-money laundering specialist and works on money laundering, corruption, bribery, compliance, Foreign Corrupt Practices Act (FCPA), extradition, and forfeiture matters, in addition to representing financial institutions in Bank Secrecy Act and USA Patriot Act anti-money laundering matters.

The authors would like to thank Marcelo Ovejero, consulting counsel in Holland & Knight’s Miami office, for his contributions. 

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