United States v. Gabriel Torres

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ January 17, 2003
THOMAS K. KAHN
No. 02-11082 CLERK
________________________

D.C. Docket No. 00-00479-CR-ASG

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

versus

GABRIEL TORRES,
Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(January 17, 2003)

Before WILSON and FAY, Circuit Judges, and MILLS*, District Judge.

WILSON, Circuit Judge:

__________________
*Honorable Richard Mills, United States District Judge for the Central District of Illinois, sitting
by designation.
 In an effort to avoid the running of the statute of limitations in a criminal

case, the government obtained a suspension of the limitations period pursuant to 18

U.S.C. § 3292. This statute permits the tolling of the limitations period so that the

government may pursue an official request for evidence located in a foreign

country. The tolling begins at the time of the official request and concludes when

the foreign government takes “final action” on the request. Id. § 3292(b). In this

appeal, we decide, in an issue of first impression in this Circuit, what constitutes

“final action” within the meaning of § 3292.

BACKGROUND

From the late 1980s through February of 1995 Gabriel Torres, the director of

Garces Commercial College, and other employees of the college, were involved in

a scheme to defraud the United States Department of Education by filing

fraudulent Pell Grant applications.1 Their bogus submissions generated millions of

dollars, which they eventually concealed in corporate bank accounts located in the

Isle of Man. Subsequently, the government began investigating Torres and other

Garces College employees for their involvement in the Pell Grant fraud.

1
The Pell Grant Program is a program that was created to assist students who
demonstrate financial need with the payment of their tuition at institutions of
higher education. See 20 U.S.C. § 1070(a)(1). Pell Grants are administered
through the Department of Education. See id. (providing that the Secretary of
Education carries out the program).
2
 In furtherance of its pending investigation, on July 9, 1999, the government

made a formal Mutual Legal Assistance Treaty (MLAT) request through the

Department of Justice’s Office of International Affairs (OIA) for international

assistance in obtaining evidence located in the Isle of Man.2 After the MLAT

request, the government submitted an ex parte application to the district court for a

suspension of the statute of limitations pursuant to § 3292. The district court

granted the government’s application, suspending the statute of limitations “for the

period beginning on July 9, 1999, and ending on the date the Isle of Mann [sic]

takes final action on the request for evidence.”

The Isle of Man first responded to the government’s MLAT request on

November 12, 1999. At that time, Detective Constable Annie Kneale of the Isle of

Man’s Constabulary Fraud Squad transmitted the Isle of Man’s response to the

OIA. Specifically, she sent documents that the government requested in its MLAT

request and a facsimile cover sheet stating, “Enclosed is the information you

require.” When the government received the documents from the OIA, however, it

2
The request, which was sent to the attorney general of the Isle of Man,
detailed the nature of the fraud and related offenses; identified several individuals
and corporations under investigation, including Torres; explained that money from
the fraud had been funneled to offshore accounts located in the Isle of Man; and
itemized the records that the government sought from the Isle of Man.
3
discovered that the Isle of Man had not included several documents that it

requested.3

Thereafter, on January 12, 2000, without requesting an extension of its

motion to toll the statute of limitations, the government, through the OIA, renewed

its request to the Isle of Man. In the OIA’s supplemental request, it asked the Isle

of Man to provide the omitted documents, noting that they “were the subject of

[its] original re[q]uest.”4 On March 8, 2000, pursuant to the government’s

supplemental request, Detective Constable Kneale transmitted the documents that

she originally sent in addition to the documents that she previously omitted. This

time, the cover sheet accompanying the transmission provided, “Enclosed are all

documents that Barclays Bank PLC Isle of Man hold on the above investigation.”

After receiving all of the evidence that the government had requested from

the Isle of Man, a grand jury returned an indictment against Torres and a

codefendant on June 16, 2000 for making false and fraudulent claims with the

3
Although the Isle of Man provided the government with bank statements for
six bank accounts at the Isle of Man Branch of Barclays Bank PLC as the
government requested, it did not provide authenticated copies of checks, deposit
and withdrawal slips, and transfer documents for those accounts.
4
Unbeknownst to the government, the Isle of Man closed its file on
November 15, 1999 and opened a new file upon receipt of the government’s
second request.
4
Department of Education. Then, on June 29, 2000, the grand jury returned a thirty-

eight-count superseding indictment against Torres and eight other defendants,

charging Torres with conspiracy and related substantive charges for wire fraud,

money laundering, and false claims. Torres moved to dismiss the indictments,

arguing that the claims therein were time-barred under 18 U.S.C. § 3282, which

provides for a five-year statute of limitations.

In support of his motion to dismiss, Torres argued that the Isle of Man took

“final action” on November 12, 1999, the date of its first response to the

government’s request for evidence. Hence, he argued that the government had

until May 5, 2000 to indict him for the crimes alleged in the original indictment, as

those crimes were completed no later than December 30, 1994 (the date Garces

College closed), and until June 28, 2000 to file its superseding indictment, as the

last overt act in support of the superseding indictment occurred on February 23,

1995 (the date of the alleged transfer of funds from Garces College to the

individual accounts).5 Accordingly, Torres argued that because the original

5
Normally, the limitations period begins to run on the date on which the
crime is complete. United States v. Gilbert, 136 F.3d 1451, 1453 (11th Cir. 1998).
Some offenses, such as conspiracy, however, are deemed “continuing offenses,”
because they are committed over a period of time. Id. For continuing offenses, the
statute of limitations commences on the date of the last overt act in furtherance of
the crime. Id. at 1453 & n.4.
5
indictment was returned on June 16, 2000 and the superseding indictment was

returned on June 29, 2000, both were untimely and the charges therein should be

dismissed.

The district court disagreed, however, finding “that ‘final action’ on the

request was not taken until March 8, 2000, and that the statute of limitations was

therefore tolled for a period of 242 days, and the charges contained in the

indictment were brought within the period of the limitation.” Subsequently, Torres

entered into a plea agreement in which he pled guilty to one count of conspiracy to

commit money laundering, but preserved his right to appeal the district court’s

denial of his motion to dismiss the indictment. This appeal followed.

DISCUSSION

The determination of what constitutes “final action” for purposes of § 3292

is a mixed question of law and fact. See United States v. Meador, 138 F.3d 986,

991 (5th Cir. 1998) (applying a mixed standard of review to its determination of

what constitutes “final action” under § 3292). While “[w]e . . . review the district

court’s conclusions of law de novo,” we review its determination of the underlying

6
facts and circumstances for clear error. Miles v. Naval Aviation Museum Found.,

Inc., 289 F.3d 715, 720 (11th Cir. 2002).6

Our determination of what constitutes “final action” under § 3292 begins

with the language of the statute itself. See Fed. Reserve Bank of Atlanta v.

Thomas, 220 F.3d 1235, 1239 (11th Cir. 2000) (stating that “the starting point for

all statutory interpretation is the language of the statute”). Under § 3292, the

government may apply, ex parte, for suspension of the statute of limitations when

it seeks evidence located in a foreign country. See 18 U.S.C. § 3292. The statute

provides that

[u]pon 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

6
Additionally, when reviewing the district court’s denial of a defendant’s
motion to dismiss an indictment, we apply an abuse of discretion standard. United
States v. Quiala, 19 F.3d 569, 570 (11th Cir. 1994). Also, we review de novo “the
district court’s interpretation and application of the statute of limitations.” Gilbert,
136 F.3d at 1453. Here, however, both our evaluation of the district court’s denial
of Torres’s motion to dismiss and our review of its application of the statute of
limitations turn on the meaning of the statutory phrase “final action,” which
requires de novo review. See United States v. Hooshmand, 931 F.2d 725, 737
(11th Cir. 1991) (stating that “[t]he interpretation of a statute is a question of law
subject to de novo review”).
7
 request was made, that such evidence is, or was, in such foreign
country.

Id. § 3292(a)(1). Subject to guidelines set forth in § 3292(c), the tolling of the

statute “begin[s] on the date on which the official request is made and end[s] on the

date on which the foreign court or authority takes final action on the request.” Id.

§ 3292(b) (emphasis added). Significantly, however, the statute does not define

“final action.” Moreover, when read in its entirety, the statute does not provide

any guidance as to when “final action” occurs. See CBS Inc. v. Primetime 24 Joint

Venture, 245 F.3d 1217, 1225 (11th Cir. 2001) (providing that when the plain

language of a statute does not resolve the meaning of a statutory phrase, courts

should “focus[] on the broader, statutory context” before turning to extrinsic

evidence).

As the plain language of the statute itself does not resolve the ambiguity of

the phrase “final action,” we turn to the legislative history for guidance. Thomas,

220 F.3d at 1239 (providing that when “the statutory language is ambiguous . . .

courts may examine extrinsic materials, including legislative history, to determine

Congressional intent”). In looking to the legislative history, we “‘consider the

purpose, the subject matter and the condition of affairs which led to its enactment,

and so construe it as to effectuate and not destroy the spirit and force of the law

8
and not to render it absurd.’” United States v. DBB, Inc., 180 F.3d 1277, 1283

(11th Cir. 1999) (quoting Lambur v. Yates, 148 F.2d 137, 139 (8th Cir. 1945)).

Our review of the legislative history provides some guidance. Indeed, the

purpose of § 3292 “is to make foreign-kept business records more readily

admissible into evidence in criminal trials in United States courts and to extend

statute of limitation and Speedy Trial Act deadlines when evidence located in

foreign countries must be obtained.” H.R. Rep. No. 98-907, at 2 (1984), reprinted

in 1984 U.S.C.C.A.N. 3578, 3578. The statute furthers an important law

enforcement objective. Congress was prompted to enact § 3292 as part of the

Comprehensive Crime Control Act of 1984 by “[t]he [increasing] use of offshore

banks to launder the proceeds of criminal activities” and the difficulty that federal

prosecutors were having “in obtaining records from those banks in both the

investigative and trial stages of a prosecution.” Id. As the procedures to obtain

such evidence “generally take a considerable period of time to complete,” efforts to

recover evidence located in foreign countries often resulted in statute of limitations

problems. Id. at 2–3. Thus, in enacting § 3292, Congress sought to facilitate the

prosecution of these criminal acts by affording prosecutors enough time to obtain

evidence located in foreign countries. See id. at 4 (recognizing that “[t]he bill also

. . . permits a Federal court, upon application of the prosecutor, to suspend the

9
running of the statute of limitation for such time as is necessary (up to 3 years) to

obtain evidence from a foreign country”).

Although the underlying Congressional intent of § 3292 does provide us

some assistance in determining when a foreign country takes “final action,” we are

still left without a clear-cut definition of “final action” as the legislative history

does not define nor otherwise indicate what Congress intended to signal “final

action.” We do, however, find some assistance from two of our sister circuits, the

Fifth Circuit and the Ninth Circuit, which have directly addressed this issue. See

Meador, 138 F.3d at 986; United States v. Bischel, 61 F.3d 1429 (9th Cir. 1995).

In Bischel, the Ninth Circuit addressed whether “final action” occurred when

the United Kingdom produced all of the documents requested by the government

except for one – a certificate authenticating the documents. 61 F.3d at 1432. The

court held that “final action” had not occurred, because the United Kingdom had

not sent all of the documents requested by the government. Id. at 1431. It

reasoned that “final action” requires a dispositive response by the foreign

government to all of the items set forth in the official request. Id. at 1431, 1434.

In Meador, the Fifth Circuit concurred with the Ninth Circuit’s rule

“pegg[ing] ‘final action’ to a dispositive response from the foreign government to

each item set out in the U.S. government’s official request.” 138 F.3d at 992.

10
Ultimately, however, the Fifth Circuit found more narrowly that “final action”

occurs “when the foreign government believes that it has completed its

engagement [and fully complied with the request] and communicates that belief to

our government.” Id. The court reasoned “that hinging ‘final action’ to a

dispositive response by the foreign government . . . strikes a bright-line test for

terminating the suspension period.” Id. at 993.7

Torres argues that this case is indistinguishable from Meador and that we

should adopt the Fifth Circuit’s bright-line test, under which “final action” would

have occurred on November 12, 1999 when Detective Constable Kneale

transmitted the Isle of Man’s first response to the government’s request. We,

however, decline to adopt the Meador test as we find that it creates a result that is

inconsistent with the Congressional intent underlying § 3292.8 See id. at 995–96

7
Throughout its opinion, the majority in Meador focused heavily upon the
Ninth Circuit’s statement that “‘[t]here is no ready way of knowing when the last
of anything has happened.’” 138 F.3d at 994 (quoting Bischel, 61 F.3d at 1434). In
support of its bright-line test, it reasoned that “[t]here must be a certain and
definitive end to the suspension period, a point at which ‘final action’ can be
plainly located.” Id. Although in form Meador is consistent with Bischel, we find
the Fifth Circuit’s opinion in Meador substantively more narrow as it requires only
that the foreign government think that is has provided a complete response,
whereas, in Bischel, the Ninth Circuit required a complete response to the
government’s original request. Id. at 995 (Jones, J., dissenting).
8
We are not bound by the Fifth Circuit’s decision in Meador. See OSI, Inc.
v. United States, 285 F.3d 947, 952 n.3 (11th Cir. 2002) (noting that “we are not
11
(Jones, J., dissenting) (finding that conditioning “final action” on a foreign

government’s determination that it has fully complied with the government’s

request “undermines the intent of Congress” as it is contrary to § 3292’s

underlying purpose). Indeed, under the Meador test, § 3292 turns on the subjective

opinion of foreign countries – whether correct or not – rather than on an objective

assessment of whether the responding country’s submissions were, in fact,

complete. See id. at 995 (Jones, J., dissenting). Congress’s intent of “facilitat[ing]

. . . the cumbersome process of obtaining evidence from foreign governments” is

not furthered by a test that disregards the completeness of a foreign government’s

response and instead “makes American law dependent on the customs and

bureaucratic language of foreign cultures rather than on a sound application of

American policy.” Id. at 995–96 (Jones, J., dissenting); see also H.R. Rep. No. 98-

907, at 2 (stating that “[t]he purpose of the [statute] is to make foreign-kept

business records more readily admissible”). Certainly, there is no need to create a

test that requires the government to reapply for a suspension of the limitations

period where, as here, the foreign government inadvertently omitted documents

bound by decisions of our sister circuits”).
12
that fell within the scope of the government’s original request for which it had

already obtained a suspension.9

We do, however, share some of the concerns that the Fifth Circuit expressed

in Meador – namely, leaving it up to the prosecutor to decide when “final action”

has taken place. See Meador, 138 F.3d at 993. Congress could not have intended

that the prosecutor be vested with the unlimited discretion to make this

determination, as doing so would provide the government with the potential to

delay the case and deprive the defendant of the benefits of the limitations period to

which he is statutorily entitled. Congress obviously took that possibility into

consideration, however, when it implemented the two safeguards in § 3292(c).

First, subsection (c)(1) puts a three-year limit on the suspension period. 18 U.S.C.

9
Torres argues that the government’s January 12th supplemental request was
beyond the scope of the district court’s suspension order. Although the
government concedes that the district court’s order suspending the statute of
limitations applies only to its initial request, it argues that because the documents it
sought in its supplemental request were documents that it specifically asked for in
the original request, its supplemental request fell within the scope of the district
court’s suspension order. We agree. We do not interpret § 3292 to prohibit the
government from making a supplemental request for documents that it requested in
its original request when the foreign government fails to produce those documents.
Such a reading of § 3292 is consistent with Congressional intent. See H.R. Rep.
No. 98-907, at 2 (providing that “[t]he purpose of the [statute] is to make foreign-
kept business records more readily admissible”); see also Meador, 138 F.3d at 995
(Jones, J., dissenting) (finding that “[t]he purpose of th[e] statute was to facilitate,
not turn into a game, the cumbersome process of obtaining evidence from foreign
governments”).
13
§ 3292(c)(1) (providing that “[t]he total of all periods of suspension under this

section with respect to an offense . . . shall not exceed three years”). Second, if the

foreign government takes final action “before the statute of limitations would

otherwise expire,” “[s]ubsection (c)(2) limits the period of suspension to six

months.” Bischel, 61 F.3d at 1432;10 see also 18 U.S.C. § 3292(c)(2) (providing

that “the [t]otal of all periods of suspension under this section . . . 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”).

Yet, the better practice by the government is to request an extension of the

suspension period when it believes that the official request for information from

the foreign government has been nonresponsive or incomplete. The district court

could then consider whether a new or supplemental request to the foreign

government for additional information is appropriate or whether the original

response is truly complete. When in doubt, it is the preferable practice that the

government ask the district court for an extension rather than make its own

10
We agree with the Ninth Circuit’s interpretation of § 3292(c)(2),
explaining that it “limits the time of tolling to six months when both the official
request and the ‘final action’ occur within the normal period of limitations.”
Bischel, 61 F.3d at 1433.
14
subjective decision on finality. Such a practice avoids unnecessary delay and

placing the defendant at the whim of the prosecutor.11 It also avoids placing the

prosecutor at the whim of the foreign government.

CONCLUSION

We adopt the Ninth Circuit’s broader construction of “final action,” which

focuses the inquiry upon the foreign government’s dispositive response to each

item listed in the official request. See Bischel, 61 F.3d at 1433–34. We hold that

“final action” for the purposes of § 3292(b) occurs when a foreign court or

authority provides a dispositive response to each of the items listed in the

government’s official request for information. Accordingly, as the Isle of Man’s

initial response on November 12, 1999 was incomplete – it inadvertently omitted

several documents that were within the subject matter of the government’s original

11
Statutes of limitations serve an important function in our adversarial
system, especially in criminal law. Although, in some instances, criminal statutes
of limitations operate to preclude the prosecution of criminal acts, they “have the
salutary effect of encouraging law enforcement officials promptly to investigate
suspected criminal activity.” Toussie v. United States, 397 U.S. 112, 114–15
(1970). Moreover, criminal statutes of limitations ensure the defendant’s right to a
fair trial, as they are implemented by the legislature to ensure “the repose of
society and the protection of those who may (during the limitation) . . . have lost
their means of defense.” Meador, 138 F.3d at 994 (alteration in original) (internal
quotation marks omitted). Additionally, they create a means of predictability by
specifying the point at which “a defendant’s right to a fair trial would be
prejudiced.” Id. (internal quotation marks omitted).
15
MLAT request, and the statement on the cover sheet did not provide a dispositive

response concerning the omitted documents – it did not take “final action” on that

date. Indeed, as the district court found, the Isle of Man did not take “final action”

until March 8, 2000 when it provided a clear, dispositive, and unambiguous

response to each item in the government’s original request. We are unable to find

on this record that this factual determination by the district court is clearly

erroneous. In its March 8, 2000 response, the Isle of Man provided the omitted

documents and communicated to the government on the accompanying facsimile

cover sheet, “Enclosed are all documents that Barclays Bank PLC Isle of Man hold

on the above investigation.” See id. Therefore, under the district court’s

suspension order, the statute of limitations was tolled from July 9, 1999 to March

8, 2000 – a total of 242 days. As such, the charges against Torres in both

indictments were timely.

Accordingly, we AFFIRM the district court’s denial of Torres’s motion to

dismiss the indictment.12

12
Our holding does not ignore the possibility that a foreign government may
not be able to produce each and every document or comply with each request for
evidence that the government makes. Instead, the phrase “dispositive response”
refers to a foreign government’s response to each requested item, even if its
response simply communicates that it cannot comply. For example, the Isle of
Man stated in its March 8, 2000 response, “Enclosed are all documents that
Barclays Bank PLC Isle of Man hold on the above investigation.” That statement
16
unambiguously alerted the government that the Isle of Man had responded to its
request as completely as possible.
17