IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-40022
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
JACK MANNING MEADOR, JANE MEADOR COOK,
JOHN STEPHEN TORIGIAN,
Defendants-Appellees,
Appeal from the United States District Court
For the Eastern District of Texas
April 13, 1998
Before HIGGINBOTHAM, JONES and SMITH, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
The United States appeals the dismissal of the felony
indictment of three Texans as barred by the statute of limitations.
We must decide whether the indictment is saved by the suspension of
the limitations period Congress granted to allow pursuit of
evidence in foreign countries. This requires decision of what
constitutes “final action” within the meaning of the suspension
provision in 18 U.S.C. § 3292(b).
The district court held that when a foreign government regards
its efforts to satisfy an “official request” by the United States
government as complete and communicates that fact to the United
States government, it takes “final action” for the purposes of 18
U.S.C. § 3292(b), regardless of whether the foreign government’s
closing of the matter proves in time to have been incorrect. We
agree.
I.
This case takes us to events more than fifty years ago in Nazi
Germany. In the summer of 1945, as World War II was just
concluding, American troops maintained the peace for Allied forces
in Quedlinburg, Germany, a town that dates back to medieval times.
Precious items had been placed for safekeeping in an abandoned
mine southwest of the town. After U.S. troops withdrew from the
area, several important pieces were missing. The missing artifacts
included the “Samuhel-Evangeliar”, a ninth century medieval
manuscript written entirely in goldSSthe “Samuhel Gospels,” and the
“Evangelistar aus St. Wiperti,” a sixteenth century prayer
bookSSthe “Prayer Book”.
Joe T. Meador, a young American serviceman, was part of the
Allied force in Quedlinburg. During this time, he sent several
packages to his family in Whitewright, Texas. By his letters, the
packages contained at least two of the missing items. The
Government alleged in its indictment that Joe Meador stole the
artifacts from the church treasury in Quedlinburg, Germany on or
2
about April 19, 1945, when he was stationed there. On Joe Meador’s
death, his brother, Jack Manning Meador, and sister, Jane Meador
Cook, inherited his possessions and belongings. Among those items
were the Samuhel Gospels and the Prayer Book.
Difficult financial times came, and Jane Cook and Jack Meador
decided to sell the Samuhel Gospels and the Prayer Book. They
retained defendant John Stephen Torigian, a Houston attorney, who
assured them that they had good title to the treasures through the
Texas laws of inheritancy. They then decided to sell these
manuscripts with Torigian’s help.
The effort to sell the manuscripts was no clandestine
enterprise. Torigian hired an expert in medieval manuscripts,
Jacques Quentin, of Geneva, Switzerland to authenticate the
manuscripts and assist in their sale. In 1988, Torigian opened a
Swiss bank account and thereafter leased two safety deposit boxes
from the same bank in Zurich. Torigian then began sending letters
and photographs of the two manuscripts to various museums and art
and manuscript dealers in the United States and Europe for the
purpose of selling these manuscripts. Heribert Tenschert, a
Bavarian book dealer in Passau, Germany expressed an interest in
the manuscripts. In 1990, Torigian allowed Tenschert to examine
the Samuhel Gospels. Tenschert then approached Dr. Klaus Maurice,
the Secretary-General of the Cultural Foundation of the States in
Berlin, Germany to obtain funding for the purchase of the Samuhel
Gospels.
3
Acting for the Foundation, Dr. Maurice authorized Tenschert to
purchase the Samuhel Gospels from Torigian for three million
dollars. As part of his agreement with Torigian, Tenschert
deposited funds into Torigian’s Swiss bank account and took
possession of the Samuhel Gospels. All parties agree that the last
of these transactions took place on May 9, 1990.
Eventually, other parties got wind of the situation. The
Church in Quedlinburg filed suit in Whitewright, Texas, seeking
return of the rest of the treasures. As a settlement of this suit,
the Church paid one million dollars for the artifacts. After this
sale, the United States Government began investigating the
transactions concerning the two manuscripts.
Because the United States cannot directly investigate a crime
and gather evidence in a foreign country, on March 2, 1995, the
Government made an official request to the Ministry of Justice of
the Federal Republic of Germany for certain evidence located in
Germany pertinent to the investigation of the defendants. This
official request came two months before the five-year limitations
period would have expired on May 9, 1995, absent any suspension.
It stated, in relevant part:
TESTIMONY NEEDED
The prosecutor requests interviews with several
persons in Germany and further requests that she and an
agent of the Federal Bureau of Investigation be permitted
to be present for all interviews. With respect to the
interview in Munich of Heribert Tenschert, the prosecutor
requests that a judge or magistrate conduct the
proceedings. With respect to all other witnesses, police
interviews will be sufficient. The prosecutor also seeks
4
to view and photograph or copy documents and other
evidence presently in the possession of persons or
institutions in Germany. Please interview the following
persons at the indicated locations:
1. Berlin
A. Dr. Klaus Maurice, Secretary General of the
Cultural Foundation of the States,... Dr. Maurice is
expected to have information and documents regarding the
agreement by The Cultural Foundation of the States to
purchase the Samuhel Gospels....
On March 3, 1995, the Government, based upon this official
request, filed an ex parte application for suspension of the
running of the statute of limitations pursuant to 18 U.S.C. § 3292.
The district court granted the application.
On June 2, 1995, Assistant U.S. Attorney Carol Johnson and FBI
Special Agent Mike Krenek participated in an interview by the
German police of Dr. Maurice. During the interview Dr. Maurice
provided the German police with documents relating to the purchase
of the Gospels and promised to produce additional documents and
ledgers to the German police. On June 7, 1995, all interviews of
witnesses sought in the government’s official request were
completed.
On August 23, 1995, and September 7, 1995, the Office of
International Affairs (OIA) in the U.S. Department of Justice
received documents sent by German officials that were responsive to
the March 2, 1995 official request. The OIA forwarded those
documents to Assistant U.S. Attorney Johnson.
On October 27, 1995, the German Ministry of Justice sent a
letter to the OIA stating, in relevant part:
5
I have the honor of transmitting to you the following items in
satisfaction of the above request which have turned up in
Bavaria....
According to my documentation, the request has now been
completely satisfied. I therefore consider my function to be
concluded.1
On November 7, 1995, OIA forwarded these additional documents
from German authorities to AUSA Johnson. The OIA attorney
cautioned that AUSA Johnson should review the enclosed documents
carefully to determine if the German government had fully complied
with the official request.
On November 14, 1995, AUSA Johnson responded that additional
documents were required since Dr. Maurice had not yet provided the
accounting statements and ledgers promised to them during the
police interview on June 2, 1995. However, at this time the
prosecution chose not to seek an official letter of request to the
German government requesting its assistance in obtaining the
accounting statements and ledgers from Dr. Maurice. Significantly,
the prosecution also did not request the district court to continue
suspension of the limitations period.
On December 21, 1995, the OIA attorney notified German
officials that the documents which Dr. Maurice had agreed to
produce during the police interview had not been received and
requested that the documents be supplied “as soon as possible.”
1
This is the U.S. government’s translation of the letter.
The defendants claim that the last sentence in this letter in the
original German is actually stronger in its indication of finality
than the government’s English translation suggests. They contend
that a more accurate translation of this last sentence should read
as follows: “I therefore consider my record [in this case] to be
closed.”
6
Again, the government requested no extension of the suspension of
limitations earlier ordered. Rather, the government accelerated
its efforts to obtain an indictment, working through the Christmas
holiday. The prosecutors were plainly not waiting for the
additional production of documents before asking the grand jury to
indict the defendants.
On January 4, 1996, the grand jury indicted Meador, Cook and
Torigian for conspiring to receive, possess, conceal, store,
barter, sell and dispose of stolen goods and for receiving,
possessing, concealing, storing, bartering, selling and disposing
of stolen goods.
The German government did not respond until March 31, 1996.
At that time, it sent a memorandum from the Police President in
Berlin stating that Dr. Maurice had sent the documents to the U.S.
Consulate in Frankfurt, Germany, to the attention of Special Agent
Richard Tamplin of the FBI on January 31, 1996. SA Tamplin had
forwarded these documents to SA Krenek.
The defendants, Meador, Cook and Torigian, moved to dismiss
the indictment urging the statute of limitations. On October 18,
1996, at the final pretrial hearing, the Government conceded that
the last overt act in furtherance of the alleged conspiracy was
taken on May 9, 1990. Thus, May 9, 1995 was the expiration date
under the statute of limitations for all charged offenses, absent
a suspension under 18 U.S.C. § 3292. If the request was complete
and final action occurred on June 7, 1995, when all the interviews
had been conducted and all documents had been gathered, then the
7
limitations period was suspended for a period of 97 days, from
March 2, 1995 (the date of the official request) to June 7, 1995.
If the October 27, 1995 letterSSstating that the request had been
“completely satisfied” and the German official's function was
“concluded”SSwas the “final action”, then the statute of
limitations was suspended for a period of 239 days. If the
limitations period was suspended for 97 days, it would have expired
on August 14, 1995. Had it been suspended for 239 days, it would
have expired on January 3, 1996SSone day before the indictment was
returned.
On October 22, 1996, the District Court dismissed all counts
of the indictment against the defendants, concluding they were
barred by the statute of limitations. The District Court held that
“final action” within the meaning of 18 U.S.C. § 3292(b) had
occurred on June 7, 1995, or, at the latest, on October 27, 1995,
and hence, the indictment was barred by the running of the statute
of limitations.
After the District Court issued a final order dismissing the
indictment, the government sought leave to add a letter received on
January 2, 1997 from the German Ministry to the record. The
District Court denied the request, explaining:
[M]uch of the evidence [in the letter] was “created” in
response to the letter of AUSA Johnson after the Court issued
a final opinion dismissing the final indictment in this case.
... [T]his Court has no authority to allow the government’s
letters to be added to the appellate record.
Apparently, AUSA Johnson had asked the OIA to contact the German
Ministry for clarification and confirmation that the ledgers and
8
documents obtained from Dr. Maurice were indeed in response to the
United States’ original request sent on March 2, 1995.
The January 2, 1997 letter from the German Ministry, an
Addendum to the Government’s Appeal Brief, confirms that the
documents sent by Dr. Maurice to FBI Special Agent Richard Tamplin
were in response to the Government’s official request for legal
assistance. The defendants have moved this Court to dismiss the
appeal or, alternatively, to strike the addendum to the
government’s brief and to impose sanctions against the government
because the government’s appeal brief contains the January 2, 1997
letter, which is not part of the district court record in this
case. Given our disposition of the case, we do not reach this
motion. The United States now appeals the order dismissing the
indictment.2
II.
A.
The parties disagree as to the appropriate standard of review.
Not surprisingly, the government characterizes the district court's
findings as pure questions of law that are subject to de novo
review, while the defendants claim that the findings are factual,
reviewable only for clear error.
2
Meador and Cook originally cross-appealed the district
court’s refusal to dismiss the indictment on other grounds, but
abandoned their cross-appeal in their brief. This court, reading
the abandonment of the cross-appeal as a motion to dismiss pursuant
to Rule 42, granted that motion.
9
The determination of what is a “final action” is a mixed
question of law and fact. To the extent that the district court's
finding involves discerning a legal standard for “final action”
from the statute, it is a question of law. See United States v.
Richberg, 398 F.2d 523, 526 (5th Cir. 1968) (noting that meaning of
word “club” within statute is a question of law once the underlying
facts have been determined). But when the district court merely
determines the applicable facts and circumstances in this case,
those determinations are factual. Therefore, while we review the
district court’s findings of the underlying facts for clear error,
we review the ultimate conclusion of “final action” de novo. See,
e.g., United States v. Muniz-Melchor, 894 F.2d 1430, 1439 n.9 (5th
Cir.), cert. denied, 495 U.S. 923 (1990) (outlining a mixed
standard of review). Where the district court has reviewed
evidence and heard testimony and determined whether a given action
by the foreign authority was responsive to the U.S. government’s
official request, we review that determination for clear error.
But where the district court has used these factual findings to
determine when “final action” took place, we review those legal
conclusions de novo.
B.
The central issue here is the proper statutory interpretation
of the term “final action.” 18 U.S.C. § 3292(b) (1985). There are
four dates at which there may have been a “final action” in this
case. The earliest date is June 7, 1995, when the last of the
10
interviews of the German witnesses were concluded and the documents
produced at those interviews were handed over. The next date is
October 27, 1995, when the German Ministry of Justice sent the
letter stating that it considered its “function to be concluded”.
The third and fourth dates are January 31, 1996, when Dr. Klaus
Maurice sent additional documents to FBI Special Agent Richard
Tamplin, and March 31, 1996, when the German government officially
notified the U.S. about the production of those documents.
The government contends that “final action” did not occur
until either of the last two dates, January 31, 1996, or March 31,
1996, and hence its prosecution is not time-barred. It urges that
“final action” occurs only when it is satisfied that all the
evidence that may be responsive to its official request for
assistance has been produced, regardless of the foreign
government’s determination that it has completed its response to
the official request for evidence.
We begin our analysis with the statute. 18 U.S.C. § 3292
states:
§ 3292. Suspension of limitations to permit United States to
obtain foreign evidence
(a)(1) Upon 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 it reasonably
appears, or reasonably appeared at the time the request
was made, that such evidence is, or was, in such foreign
country.
(2) The court shall rule upon such application not
later than thirty days after the filing of the
application.
11
(b) Except as provided in subsection (c) of this
section, a period of suspension under this section shall
begin on the date on which the official request is made
and end on the date on which the foreign court or
authority takes final action on the request.
(c) The total of all periods of suspension under
this section with respect to an offenseSS
(1) shall not exceed three years; and
(2) 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.
(d) As used in this section, the term “official
request” means a letter rogatory, a request under a
treaty or convention, or any other request for evidence
made by a court of the United States or an authority of
the United States having criminal law enforcement
responsibility, to a court or other authority of a
foreign country.
18 U.S.C. § 3292 (1985) (emphasis added). Under subsection (b),
the period of suspension ends when “the foreign court or authority
takes final action on the [government’s official] request.” 18
U.S.C. § 3292(b) (1985). The term “final action” in subsection (b)
is not defined in the statute.
Section 3292 was part of the Comprehensive Crime Control Act
of 1984. It was enacted “to extend statute of limitation and
Speedy Trial Act deadlines when evidence located in foreign
countries must be obtained” and “to make foreign-kept business
records more readily admissible into evidence in criminal trials in
United States courts.” H.R. Rep. No. 98-907, at 2-3 (1984),
reprinted in 1984 U.S.C.C.A.N. 3182, 3578. There is little case
law interpreting this statute and none from this court. See United
States v. Bischel, 61 F.3d 1429 (9th Cir. 1995); United States v.
Miller, 830 F.2d 1073 (9th Cir. 1987), cert. denied, 485 U.S. 1033
(1988); United States v. Neill, 952 F. Supp. 831 (D.D.C. 1996).
12
The Ninth Circuit decision in United States v. Bischel, 61
F.3d 1429 (9th Cir. 1995), is the only case that has interpreted
the term “final action” in § 3292(b). In Bischel, the British
government turned over to the United States all of the requested
records, but delayed certifying their authenticity, although
authentication had been requested by the U.S. government. Id. at
1431. Bischel argued that “final action” took place when the
British government turned over all the documents. Id. at 1434.
The prosecutors argued, and the Ninth Circuit agreed, that “final
action” occurred only when the foreign government made a
“dispositive response” to every item requestedSSincluding turning
over the records and certifying their authenticity, as requested by
the U.S. government. Id. Rejecting Bischel’s argument, the Ninth
Circuit refused to hold that “final action” takes place when the
last of the records requested by the U.S. government had been
received. Id. The Ninth Circuit noted that “there is no ready way
of knowing when the last of anything has happened.” Id. Instead,
it pegged “final action” to a dispositive response from the foreign
government to each item set out in the U.S. government’s official
request. Id. at 1433-34 (noting that “pegging ‘final action’ to
disposition, up or down, of each of the items in the official
request provides a more certain benchmark by which to measure
whether the action that has been taken is ‘final’ or not.”).
We concur with the reading of “final action” in Bischel. We
are persuaded that a determination of when “final action” has been
taken by a foreign government, within the meaning of § 3292(b),
13
must turn on whether a dispositive response to an official request
for evidence from our government has been obtained. Certainly, a
response to an official request for evidence can be only a first
stage of evidence gathering and not a “final action.” However,
when the foreign government believes it has completed its
engagement and communicates that belief to our government, that
foreign government has taken a “final action” for the purposes of
§ 3292(b).
In this case, when the German Ministry of Justice sent a
letter on October 27, 1995 stating that it believed that it had
completely satisfied the government’s official request and
considered its function to be concluded, it took a “final action.”
Under the government’s interpretation of this statute “final
action” by the foreign authority takes place when the prosecutor
determines that she has received all the evidence responsive to the
official request. Defendants reply that “final action” is to be
determined from the subjective purpose of the foreign authority to
conclude its work.
The government’s position that only when it is satisfied with
the evidence provided has there been a final action by the foreign
government is untenable. Under the government’s view, any response
to its official request is not complete and thus not final until it
decides it is final, subject to only the three-year limit on the
suspension period in § 3292(c)(1). This reading would rend the
statutory scheme detailed in § 3292. If Congress wished to provide
the government with a blanket three-year suspension period to
14
collect evidence from foreign countries, it could have done so. It
bears emphasis that Congress did not provide a direct role for the
district court in terminating a running suspension period, such as
requiring periodic findings by the court to determine if a “final
action” had been taken. Rather, Congress gave the government a
maximum suspension period of three years to gather evidence and
within that three year period, the suspension period ends when the
foreign government takes a final action on its official request.
We believe that hinging “final action” to a dispositive response by
the foreign government is consistent with this statutory scheme and
strikes a bright-line test for terminating the suspension period.
Our reading of the statute will not frustrate Congressional
purpose by hampering the government in obtaining evidence from
foreign countries. If dissatisfied with a dispositive response
from a foreign authority, the prosecutor need only file another
request and seek a further suspension of the limitations period,
subject to the ultimate three-year limitation on the suspension
period.3
The government maintains that its position is consistent with
Bischel, since there was no “dispositive response” from the German
government until all the documents had been turned over to them in
January. We are not persuaded. Bischel rejected the argument the
government is making here that “final action” takes place only when
the last of the records requested have been received. See Bischel,
3
This assumes that final action does not come until after
the original period of limitations would have run without any
suspension. See 18 U.S.C. § 3292(c)(2) (1985).
15
61 F.3d at 1434. Indeed, Bischel noted that “there is no ready way
of knowing when the last of anything has happened.” Id. We need
not rest there and do not, but Bischel is at least support for the
theory that “final action” occurred on June 7, 1995, when the
interviews were completed. Certainly so for October 27, 1995, when
the German Ministry sent the letter stating that its function was
concluded. On the earlier date, the German government had in fact
disposed of every item requested by the U.S. By the October 27
letter, the foreign government had to its lights made its
“disposition, up or down,” of every item in the government’s
official request. Stated differently, by October 27, 1995, the
German Ministry had either turned over the information it had (an
“up”), or indicated that no further information would be
forthcoming (a “down”).
The government also makes the related argument that whether a
document is deemed responsive to an official request for evidence
ought to be measured ex poste. Under this view, whenever a
document that is in any way relevant to a broadly-worded official
request is turned over, the limitations period must be suspended up
to that point. In this case, since the documents turned over by
Dr. Maurice in January 1996 may be, with the benefit of hindsight,
considered relevant to the agreement by the Foundation to purchase
the Samuhel Gospels, the suspension period ought to continue till
then. This is contrary to the “negative” measure of responsiveness
used in Bischel. There, the question asked was whether the
response to the request objectively met its demands. Cf. Bischel,
16
61 F.3d at 1433. If it did so, a later additional response would
not alter the finality of the first response, it being facially
complete. Relatedly, it follows that a response that is not
facially complete in responding to the calls of the request must
find its finality in an accompanying clear statement of the
responding foreign agency or official.
We are persuaded that the latter, negative standard of Bischel
is the correct one. There must be a certain and definitive end to
the suspension period, a point at which “final action” can be
plainly located. If the period is suspended retroactively whenever
another relevant document comes in, there will be no certain end.
See Bischel, 61 F.3d at 1434 (“[T]here is no ready way of knowing
when the last of anything has happened.”).
We do not decide whether Dr. Maurice’s document search and
production in January, 1996, was an action taken by a German
“authority” and whether it was responsive to the original March 2,
1995 official request to the German government. We hold that the
October 27, 1995 letter by the German government stating that it
had “completely satisfied” the government’s official request and
considered its “function to be concluded” is a dispositive response
that constitutes a “final action” for the purposes of § 3292(b),
thus ending the suspension period on that day. It follows that the
statute of limitations expired on January 3, 1996, one day before
the indictment was handed down, after being suspended for 239 days
from March 2, 1995 to October 27, 1995.
17
C.
Our preference for a strict, bright-line standard for “final
action” is a product of the general rule of strict adherence to
statutes of limitation. See, e.g., United States v. Marion, 404
U.S. 307, 322 n.14 (1971). As the Supreme Court has noted,
statutes of limitation
represent legislative assessments of relative interests of the
State and the defendant in administering and receiving
justice; they “are made for the repose of society and the
protection of those who may (during the limitation) . . . have
lost their means of defense.” [St. Louis] Public Schools v.
Walker, 76 U.S. (9 Wall.) 282, 288 (1870). These statutes
provide predictability by specifying a limit beyond which
there is an irrebuttable presumption that a defendant's right
to a fair trial would be prejudiced.
Marion, 404 U.S. at 322. Moreover, “criminal limitations statutes
are ‘to be liberally interpreted in favor of repose.’” Toussie v.
United States, 397 U.S. 112, 115 (1970) (quoting United States v.
Scharton, 285 U.S. 518, 522 (1932)). While their operation in some
cases deprives society of its ability to prosecute criminal
offenses, that is the price we pay for repose. Furthermore,
“[s]uch a time limit may also have the salutary effect of
encouraging law enforcement officials promptly to investigate
suspected criminal activity.” Marion, 404 U.S. at 323 (quoting
Toussie, 397 U.S. at 114-15).
The purpose of § 3292, apparent from its structure and
legislative history, is to compensate for “delays attendant in
obtaining records from other countries.” H.R. Rep. No. 98-907, at
2-3 (1984), reprinted in 1984 U.S.C.C.A.N. 3579. This provision
should not be an affirmative benefit to prosecutors, suspending the
18
limitations period, pending completion of an investigation,
whenever evidence is located in a foreign land. It is not a
statutory grant of authority to extend the limitations period by
three years at the prosecutors’ option.
We AFFIRM the district court’s dismissal of the indictment.
ENDRECORD
19
EDITH H. JONES, Circuit Judge, dissenting:
Although my colleagues’ opinion does not say so directly,
I believe they are concerned about the apparent injustice
surrounding this prosecution and the government’s possible attempt
to “manufacture” post-hoc evidence in its favor. Such sympathies
may not be misplaced, but they have resulted in an interpretation
of “final action” by a foreign government that will yield results
both uncertain and detrimental to the government’s legitimate
prosecutorial interests in an increasingly globalized community.
I therefore respectfully dissent.
First, I am not as concerned as the majority about
attempting to fashion a “bright-line rule” for “final action” under
this statutory extension of the statute of limitations. The
majority say they do not want to promote prosecutorial foot-
dragging. But Congress has set an outer limit on the extension of
statutes of limitations for these purposes -- three years -- and I
see no reason for niggling the government about reasonable
developments that occur within the three-year period. Yet that is
what the majority has done by applying its “foreign government
subjective test” and artificially ignoring the full range of German
responses to the prosecutorial request. The purpose of this
statute was to facilitate, not turn into a game, the cumbersome
process of obtaining evidence from foreign governments.
20
Second, the “bright-line” test of the majority is both
ephemeral and unrealistic. To say that a foreign government’s
“final action” depends on that government’s “subjective
interpretation” of when it has fully complied with the request for
evidence makes American law dependent on the customs and
bureaucratic language of foreign cultures rather than on a sound
application of American policy.4 The meaninglessness of this
“bright line” is obvious in the present context: although the
German government allegedly closed its books on this matter in
October, 1995, it continued to funnel documents to the U.S. for
several months afterwards. I marvel that the majority can decipher
the foreign government’s “subjective intent” when the German
government’s actions and words are so contradictory. Indeed, I
suspect that more often than not conflicting signals will emanate
from official foreign communications, just as they routinely do
within and among multi-layered bureaucracies everywhere. The
majority’s “foreign government subjective test” will rarely reflect
reality. Instead, we should look to the full range of events
surrounding the German government’s response, the outer bounds of
which comfortably -- and well within the three-year limit --
protect the timeliness of the indictment. So viewed, the “final
4
The majority sets up a straw man in arguing that the
government advocates judicial deference to the government’s
interpretation of what constitutes final action. I cannot find
such an argument in the government’s brief. Instead, the
government appears to contend, as I do, that “final action” must be
interpreted realistically.
21
action” occurred either in January 1996 or in March of that year,
when the last documents responsive to the American request were
transmitted.
It should be noted here that the Bischel opinion,
mentioning dispositive action by the foreign government, supports
the majority’s position in form but not in substance. In Bischel,
the Ninth Circuit refused to confine the interpretation of “final
action” merely to the physical production of relevant documents,
where the U.S. had also specifically requested a certificate of
authenticity. The court opted for a broader rather than narrower
construction of “final action” to include the complete response of
the foreign government to the full request. Bischel is thus not
inconsistent with the position I take. In fact, the indictment was
rendered in Bischel before “final action” had occurred, inasmuch as
no certification of authenticity had yet been received, and British
officials were continuing discussions on certification even after
the date of indictment. Here, where the German government was
plainly continuing to cooperate with American authorities even
after its letter of October 1995, to secure Dr. Maurice’s documents
that were plainly within the scope of the request, I cannot see how
Bischel would compel a finding that “final action” occurred before
the train of events was complete.
Third, the majority’s decision, by confusing the
interpretation of the tolling provision, will encourage the
government to enlarge its foreign evidence request as much as
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possible to extend the tolling period. The government’s brief
aptly points out one source of confusion, in a case where, as here,
the government’s “dispositive response” is in fact incorrect:
The appropriate action in response to an incorrect
letter indicating that full compliance has been made is
for the government to consult with the foreign authority
and detail the documents requested but not provided.
Accepting the trial court’s decision that a letter
incorrectly indicating that it has satisfied the official
request constitutes final action would result in a
statute of limitations beginning to run on either the
date on which that letter was sent or on the date upon
which the letter was received. A determination of which
event reinstitutes the limitation period could
potentially effect [sic] the decision of whether the
statute barred prosecution. Additionally accepting the
trial court’s decision requires that the statute of
limitations continues to run while the government takes
additional steps to ensure compliance with its official
request for assistance. Specifically, the government
would be required to write, translate, and send a
duplicative and second official request for assistance
and to file an ex parte motion to toll the limitation
period. Because the statute of limitations would
continue to run while the government seeks the production
of documents originally requested, the trial court’s
ruling subverts the legislature’s intention in enacting
18 U.S.C. 3292 [to accommodate delays in obtaining
evidence from abroad].
The government’s self-defense mechanism in response to the
majority’s ruling must be to formulate overbroad requests for
foreign evidence and thus to keep the limitations ball in the air
as long as possible while trying to avoid erroneous or misleading
“final action” statements by the foreign authorities. The
majority’s result is self-defeating.
This decision works no large injustice, certainly not to
its beneficiaries in the present case, but it creates unnecessary
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complications for law enforcement and, in my view, undermines the
intent of Congress.
I respectfully dissent.
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