     07-3107-cr
     United States v. Kozeny (Bourke)

1                         UNITED STATES COURT OF APPEALS

2                             FOR THE SECOND CIRCUIT

3                                August Term, 2007

4    (Argued: October 18, 2007                         Decided: August 29, 2008)

5                              Docket No. 07-3107-cr

6                    -------------------------------------

7                            UNITED STATES OF AMERICA,

8                                       Appellant,

9                                          - v -

10                       VIKTOR KOZENY, DAVID PINKERTON,

11                                      Defendants,*

12                              FREDERIC BOURKE JR.,

13                              Defendant-Appellee.

14                   -------------------------------------

15   Before:     SACK, KATZMANN, and HALL, Circuit Judges.

16               Appeal by the government from a judgment of the United

17   States District Court for the Southern District of New York

18   (Shira A. Scheindlin, Judge) dismissing several counts of an

19   indictment.    The district court concluded that an application


           *
              Viktor Kozeny and David Pinkerton were both named as
     defendants in the indictment. Kozeny, a resident of the Bahamas,
     is appealing an order committing him to extradition to the United
     States and is therefore not a party to this appeal. See United
     States v. Kozeny, No. 1:05-cr-00518-SAS (S.D.N.Y. Apr. 17, 2007)
     (minute entry). Pinkerton was initially an appellant, but the
     government withdrew all charges against him after this appeal was
     argued. See United States v. Kozeny, No. 1:05-cr-00518-SAS
     (S.D.N.Y. July 2, 2008) (order of nolle prosequi as to
     Pinkerton). The government's appeal as to Pinkerton was
     withdrawn by stipulation filed July 16, 2008.
1    pursuant to 18 U.S.C. § 3292 to suspend the running of a statute

2    of limitations pending a request for foreign evidence must be

3    filed before the statute of limitations expires.

4              Affirmed.

 5                            JONATHAN S. ABERNETHY, Assistant United
 6                            States Attorney (Michael J. Garcia,
 7                            United States Attorney for the Southern
 8                            District of New York, Jonathan S.
 9                            Kolodner, Assistant United States
10                            Attorney, New York, NY, on the brief,
11                            Robertson Park, Assistant Chief, Fraud
12                            Section, United States Department of
13                            Justice, Washington, DC, of counsel),
14                            New York, NY, for Appellant.

15                            EMILY STERN, Proskauer Rose LLP (Robert
16                            J. Cleary, Dietrich L. Snell, Proskauer
17                            Rose LLP, New York, NY, and Dan K. Webb,
18                            Gene C. Schaerr, J. David Reich, Jr.,
19                            Winston & Strawn LLP, Chicago, IL, on
20                            the brief), New York, NY, for Defendant-
21                            Appellee.

22   SACK, Circuit Judge:

23             The government appeals from a judgment of the United

24   States District Court for the Southern District of New York

25   granting defendant-appellee Frederic Bourke Jr.'s motion to

26   dismiss as to most of the counts on which he had been indicted.

27   The court concluded that the charges against him in those counts

28   were barred by the statute of limitations.   The government had

29   previously applied for, and had been granted, a suspension of the

30   applicable statute of limitations pursuant to 18 U.S.C. § 3292.

31   The district court held that this suspension was invalid because

32   the government's application was filed after the limitations

33   period for the crimes under investigation had expired.   The court


                                     2
1    concluded that although the statutory text was ambiguous, the

2    legislative history of section 3292, the structure of the

3    provision, the policy rationale behind statutes of limitations,

4    and the doctrine of constitutional avoidance all pointed toward

5    an interpretation of section 3292 that does not permit the

6    government to apply to suspend a statute of limitations after the

7    limitations period has expired.

8              Unlike the district court, we do not view the text of

9    section 3292 as ambiguous.   We conclude that the plain language

10   of the provision, and the structure and content of the law by

11   which it was enacted, require the government to apply for a

12   suspension of the running of the statute of limitations before

13   the limitations period expires.   We therefore affirm.

14                                BACKGROUND

15             In a sealed indictment returned on May 12, 2005,

16   defendant-appellee Frederic Bourke Jr. was charged with five

17   counts of violating the Foreign Corrupt Practices Act (the

18   "FCPA"), 15 U.S.C. § 78dd-1 et seq.; two counts of violating the

19   Travel Act, 18 U.S.C. § 1952; one count of conspiracy to violate

20   the FCPA and the Travel Act, 18 U.S.C. § 371; two counts of money

21   laundering, 18 U.S.C. § 1956; one count of conspiracy to commit

22   money laundering, 18 U.S.C. § 371; and one count of making false

23   statements to FBI agents in violation of 18 U.S.C. § 1001.    The

24   charges all relate to an alleged scheme to bribe senior

25   government officials in Azerbaijan in an effort to ensure the



                                       3
1    privatization of the State Oil Company of the Azerbaijan Republic

2    and to guarantee that Bourke profited from this privatization.

3                The parties do not dispute that 18 U.S.C. § 3282(a)

4    establishes the statute of limitations for all of the crimes that

5    Bourke is alleged to have committed.    Under that provision,

6    "[e]xcept as otherwise expressly provided by law, no person shall

7    be prosecuted, tried, or punished for any offense, not capital,

8    unless the indictment is found or the information is instituted

9    within five years next after such offense shall have been

10   committed."    Id.

11               The counts charging violations of the Travel Act and

12   the money laundering statute, and four of the five counts

13   charging violations of the FCPA, allege conduct that occurred no

14   later than early July 1998.    Barring any tolling or other

15   suspension of the statute of limitations, then, the five-year

16   limitations period for each of these offenses would have expired

17   in early July 2003.    The fifth count charging violations of the

18   FCPA alleges conduct that occurred in September 1998.    The

19   statute of limitations for that charged crime would have run in

20   September 2003.

21               The conduct related to the charge of making false

22   statements occurred in or before May 2002.    Barring any tolling

23   or other suspension of the statute of limitations, the five-year

24   limitations period for that offense would have run in or before

25   May 2007.



                                       4
1                Finally, the conduct related to the conspiracy charges

2    continued until September 1998 for the money laundering

3    conspiracy and until February 1999 for the FCPA and Travel Act

4    conspiracy.    Barring any tolling or other suspension of the

5    statute of limitations, the five-year limitations periods for

6    these offenses would have expired in September 2003 and February

7    2004, respectively.

8                Prior to the indictment, the government submitted

9    requests to the governments of the Netherlands and Switzerland

10   for evidence relating to activity it was investigating.      Each

11   request was made pursuant to a treaty on mutual legal assistance

12   ("MLAT").    See Treaty on Mutual Assistance in Criminal Matters,

13   U.S.-Neth., June 12, 1981, 1359 U.N.T.S. 209; Treaty on Mutual

14   Assistance in Criminal Matters, U.S.-Switz., May 25, 1973, 1052

15   U.N.T.S. 61.      The request to the Netherlands was made on October

16   29, 2002; the request to Switzerland on January 13, 2003.       On

17   July 21, 2003, the government applied for an order under 18

18   U.S.C. § 3292 to suspend the running of the statute of

19   limitations based on its MLAT requests.     At that point the

20   statute of limitations had run for all of the crimes under

21   investigation other than the false statements charges, the

22   conspiracy charges, and one FCPA count.

23               Section 3292 provides:

24               (a)
25                      (1) Upon application of the United
26                      States, filed before return of an
27                      indictment, indicating that evidence of
28                      an offense is in a foreign country, the

                                          5
 1                  district court before which a grand jury
 2                  is impaneled to investigate the offense
 3                  shall suspend the running of the statute
 4                  of limitations for the offense if the
 5                  court finds by a preponderance of the
 6                  evidence that an official request has
 7                  been made for such evidence and that it
 8                  reasonably appears, or reasonably
 9                  appeared at the time the request was
10                  made, that such evidence is, or was, in
11                  such foreign country.
12                  (2) The court shall rule upon such
13                  application not later than thirty days
14                  after the filing of the application.

15             (b) Except as provided in subsection (c) of
16             this section, a period of suspension under
17             this section shall begin on the date on which
18             the official request is made and end on the
19             date on which the foreign court or authority
20             takes final action on the request.

21             (c) The total of all periods of suspension
22             under this section with respect to an
23             offense –-

24                  (1) shall not exceed three years; and
25                  (2) shall not extend a period within
26                  which a criminal case must be initiated
27                  for more than six months if all foreign
28                  authorities take final action before
29                  such period would expire without regard
30                  to this section.

31             (d) As used in this section, the term
32             "official request" means a letter rogatory, a
33             request under a treaty or convention, or any
34             other request for evidence made by a court of
35             the United States or an authority of the
36             United States having criminal law enforcement
37             responsibility, to a court or other authority
38             of a foreign country.

39   18 U.S.C. § 3292.

40             On July 22, 2003, the district court (George B.

41   Daniels, Judge) entered a sealed order suspending the statute of

42   limitations for the offenses under investigation.   Pursuant to 18

                                     6
1    U.S.C. § 3292(b), the district court ordered that "the periods of

2    suspension shall begin on the dates on which the official

3    requests were made and shall end on the date on which the

4    authorities of the Governments of the Netherlands and the Swiss

5    Confederation take final action on the official requests, such

6    periods not to exceed a total of three years."   The Swiss

7    authorities produced documents in response to the MLAT on several

8    dates, the last of which was September 10, 2004.   The Dutch

9    authorities produced documents on November 8, 2005.   As noted,

10   the indictment was returned on May 12, 2005, after the date on

11   which Switzerland took final action but before the date on which

12   the Netherlands took final action.   Because the suspension of the

13   running of the statute of limitations was to "end on the date on

14   which the authorities of the Governments of the Netherlands and

15   the Swiss Confederation [took] final action" (emphasis added), at

16   the time of the indictment, the statute of limitations was still

17   ostensibly suspended on account of the outstanding MLAT request

18   to the Netherlands.

19             On October 20, 2006, Bourke filed a motion to dismiss

20   all but the false statements charges on statute of limitations

21   grounds pursuant to Rule 12 of the Federal Rules of Criminal

22   Procedure.   He argued that section 3292 does not permit the

23   government to apply for a suspension of the statute of

24   limitations after it has already expired.   The district court

25   (Shira A. Scheindlin, Judge) granted Bourke's motion, dismissing

26   all but the false statements charges.   The district court held

                                      7
1    that although the statutory text was "ambiguous," the legislative

2    history of section 3292, the structure of the provision, the

3    policy rationale behind statutes of limitations, and the doctrine

4    of constitutional avoidance all pointed toward an interpretation

5    that does not permit the government to apply to suspend the

6    statute of limitations after it has expired.

7               On July 16, 2007, the district court reinstated all of

8    the conspiracy charges and one FCPA count against Bourke on the

9    grounds that the statute of limitations had not run for these

10   charges when the section 3292 application was filed.   That order

11   is not before us on appeal.

12              The government appeals the district court's judgment

13   insofar as it dismissed charges against Bourke on statute of

14   limitations grounds.

15                                 DISCUSSION

16              Federal court interpretations of 18 U.S.C. § 3292 are

17   sparse.1   Only two decisions -- neither of them ours -- speak to


          1
            See United States v. Atiyeh, 402 F.3d 354, 362-67 (3d
     Cir.) (application must be filed before government has received
     all requested foreign evidence), cert. denied, 546 U.S. 1068
     (2005); United States v. Trainor, 376 F.3d 1325, 1330 (11th Cir.
     2004) (interpreting "preponderance of the evidence" standard in
     subsection 3292(a)); United States v. DeGeorge, 380 F.3d 1203,
     1215 (9th Cir. 2004) ("'Final action' for purposes of § 3292
     means a dispositive response from the foreign sovereign . . . ."
     (citations and internal quotation marks omitted)); United States
     v. Torres, 318 F.3d 1058, 1063 (11th Cir.) (same), cert. denied,
     540 U.S. 827 (2003); DeGeorge v. U.S. Dist. Court for the Cent.
     Dist. of Cal., 219 F.3d 930, 937, 939-41 (9th Cir. 2000)
     (holding, under a standard of review for mandamus petitions,
     inter alia, that district court did not clearly err in concluding
     that section 3292 allows ex parte applications and does not
     require that a grand jury be impaneled and hearing evidence on

                                       8
1    the question presented here.    Both, United States v. Bischel, 61

2    F.3d 1429 (9th Cir. 1995), and United States v. Neill, 940 F.

3    Supp. 332 (D.D.C.), vacated on other grounds, 952 F. Supp. 831

4    (D.D.C. 1996), found that section 3292 imposed no requirement

5    that the government apply for a suspension of the statute of

6    limitations before the statute of limitations has run.    We

7    disagree.

8                I. Standard of Review

9                This court reviews a district court's statutory

10   interpretation de novo.    United States v. Rood, 281 F.3d 353, 355

11   (2d Cir. 2002).

12               II. Principles of Statutory Construction

13               Statutory construction "must begin with the language

14   employed by Congress and the assumption that the ordinary meaning

15   of that language accurately expresses the legislative purpose."

16   United States v. Albertini, 472 U.S. 675, 680 (1985) (quoting

17   Park 'N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 194

18   (1985)).    Where the statute's language is "plain, 'the sole

19   function of the courts is to enforce it according to its terms.'"

20   United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989)


     the target offenses at time of application); United States v.
     Meador, 138 F.3d 986, 992 (5th Cir. 1998) (holding that "a
     determination of when 'final action' has been taken by a foreign
     government, within the meaning of § 3292(b), must turn on whether
     a dispositive response to an official request for evidence from
     our government has been obtained"); United States v. Miller, 830
     F.2d 1073, 1075-76 (9th Cir. 1987) (section 3292 is retroactive
     as to offenses committed before its enactment and does not
     require the government to file an application before obtaining
     evidence), cert. denied, 485 U.S. 1033 (1988).

                                         9
1    (quoting Caminetti v. United States, 242 U.S. 470, 485 (1917));

2    see also Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253-54 (1992)

3    ("We have stated time and again that courts must presume that a

4    legislature says in a statute what it means and means in a

5    statute what it says there.").

6                Statutory enactments should, moreover, be read so as

7    "to give effect, if possible, to every clause and word of a

8    statute."    Duncan v. Walker, 533 U.S. 167, 174 (2001) (quoting

9    United States v. Menasche, 348 U.S. 528, 538-39 (1955)); see also

10   United States v. Nordic Vill., Inc., 503 U.S. 30, 36 (1992)

11   (noting "settled rule that a statute must, if possible, be

12   construed in such fashion that every word has some operative

13   effect"); United States v. Anderson, 15 F.3d 278, 283 (2d Cir.

14   1994) ("[C]ourts will avoid statutory interpretations that render

15   provisions superfluous." (citations omitted)).    And "[t]he 'whole

16   act' rule of statutory construction exhorts us to read a section

17   of a statute not 'in isolation from the context of the whole Act'

18   but to 'look to the provisions of the whole law, and to its

19   object and policy.'"    United States v. Pacheco, 225 F.3d 148, 154

20   (2d Cir. 2000) (quoting Richards v. United States, 369 U.S. 1, 11

21   (1962) (internal quotation marks omitted)), cert. denied, 533

22   U.S. 904 (2001).

23               If the text of the statute itself is not clear,

24   however, a court applying the statute may consult the legislative

25   history to discern "the legislative purpose as revealed by the

26   history of the statute."    Concrete Pipe & Prods. of Cal., Inc. v.

                                      10
1    Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602, 627

2    (1993).    "Our obligation is to give effect to congressional

3    purpose so long as the congressional language does not itself bar

4    that result."    Johnson v. United States, 529 U.S. 694, 710 n.10

5    (2000) (citations omitted).

6                When interpreting a code provision related to a statute

7    of limitations, we adhere to "the principle that criminal

8    limitations statutes are to be liberally interpreted in favor of

9    repose."    Toussie v. United States, 397 U.S. 112, 115 (1970)

10   (citations and internal quotation marks omitted); accord United

11   States v. Podde, 105 F.3d 813, 819-20 (2d Cir. 1997).    This rule

12   comports with the policy rationale behind such statutes by (1)

13   "protect[ing] individuals from having to defend themselves

14   against charges when the basic facts may have become obscured by

15   the passage of time," (2) "minimiz[ing] the danger of official

16   punishment because of acts in the far-distant past," and (3)

17   "encouraging law enforcement officials promptly to investigate

18   suspected criminal activity."    Toussie, 397 U.S. at 114-15.

19               III. The Meaning of Section 3292

20   A.   "Plain Language"

21               Bourke argues that, under section 3292, an application

22   to "suspend the running" of the statute of limitations must be

23   filed before the statute of limitations has expired.    18 U.S.C.

24   § 3292(a)(1).    The government maintains to the contrary that the

25   timing of an application is constrained only by the requirement

26   that it be filed "before return of an indictment."    Id.   Both

                                      11
1    parties argue that their interpretation of section 3292 is

2    required by the language of the statute.

3               Subsection 3292(a)(1) states:

 4              Upon application of the United States, filed
 5              before return of an indictment, indicating
 6              that evidence of an offense is in a foreign
 7              country, the district court before which a
 8              grand jury is impaneled to investigate the
 9              offense shall suspend the running of the
10              statute of limitations for the offense if the
11              court finds by a preponderance of the
12              evidence that an official request has been
13              made for such evidence and that it reasonably
14              appears, or reasonably appeared at the time
15              the request was made, that such evidence is,
16              or was, in such foreign country.
17   Id. (emphasis added).   We think that the words "suspend" and

18   "running" require that we agree with Bourke.

19              It seems to us unnecessary to canvas entries in general

20   dictionaries,2 or specialized legal ones,3 or even to inquire into

21   the case law surrounding the "Suspension Clause,"4 to conclude

22   that "to suspend" is to cause to stop, at least for a time,

23   something that is otherwise in operation or effect.   And a

24   statute of limitations is only in operation or effect if it is

25   running.   It is equally obvious, we think, that a statute of

26   limitations cannot be "running" if it has already "run," i.e., if

          2
             See, e.g., Random House Webster's Unabridged Dictionary
     1917 (2d ed. 2001) (defining "suspend" as "to cause to cease for
     a time from operation or effect").
          3
             See, e.g., Black's Law Dictionary 1487 (8th ed. 2004)
     (defining "suspend" as "[t]o interrupt; postpone; defer").
          4
             U.S. Const. art. I, § 9, cl. 2 ("The Privilege of the
     Writ of Habeas Corpus shall not be suspended, unless when in
     Cases of Rebellion or Invasion the public Safety may require
     it.").

                                     12
1    it has expired at the end of the prescribed period.5    It follows

2    that a district court can "suspend the running of [a] statute of

3    limitations," 18 U.S.C. § 3292(a)(1), only if the limitations

4    period has not yet expired.     To restart the running of an expired

5    statute of limitations would be to "revive" it.     We see no basis

6    upon which to read the word "suspend" in section 3292 to include

7    the distinct concept of revival.6

8              The government urges upon us the opposite conclusion by

9    arguing that the only time limit explicitly set by the statute is

10   the requirement that the application be "filed before return of

11   an indictment."   Id.    But a requirement that the application be

12   filed before the return of the indictment and a requirement that

13   it be filed before the statute of limitations runs are not

14   mutually exclusive.     In the normal course of a criminal

15   prosecution, an indictment must, of course, be handed up before

16   the statute of limitations expires.     Indeed, the same code

17   provision establishing the statute of limitations for the crimes



          5
            See Black's Law Dictionary 1361 (8th ed. 2004) (defining
     "run" as having "expire[d] after a prescribed period").
          6
            Compare Stogner v. California, 539 U.S. 607, 632-33 (2003)
     (concluding that "a law enacted after expiration of a previously
     applicable limitations period violates the Ex Post Facto Clause
     when it is applied to revive a previously time-barred
     prosecution" (emphasis added)), with Bridges v. United States,
     346 U.S. 209, 222 (1953) (concluding that 18 U.S.C. § 3287
     "suspend[s] the running of . . . [a] statute of limitations . . .
     only where fraud against the Government is an essential
     ingredient of the crime [alleged]" (emphasis added)); see also
     Black's Law Dictionary 1346 (8th ed. 2004) (defining "revival"
     as, inter alia, "the act of restoring . . . validity or legal
     force").

                                       13
1    at issue in this appeal defines that time period by reference to

2    the window in which such an indictment must be returned.      See 18

3    U.S.C. § 3282 (providing that "[e]xcept as otherwise provided by

4    law, no person shall be prosecuted, tried, or punished for any

5    offense, not capital, unless the indictment is found or the

6    information is instituted within five years after such offense

7    shall have been committed").    Because indictment ordinarily

8    precedes the expiration of the statute of limitations period,

9    then, the words "before return of an indictment" actually imply a

10   time frame before the statute of limitations has run.

11             The government's reliance on United States v. Miller,

12   830 F.2d 1073 (9th Cir. 1987), cert. denied, 485 U.S. 1033

13   (1988), is misplaced.   The Miller court said that "[t]he statute

14   itself specifies the only relevant time the application must be

15   made: 'before return of an indictment.'"    Id. at 1076 (quoting 18

16   U.S.C. § 3292(a)(1)).   However, the Miller court sought to

17   resolve the question of whether a section 3292 application can be

18   filed after evidence from a foreign government has already been

19   received, not whether such an application can be filed after the

20   statute of limitations has run.    Indeed, the section 3292

21   application in Miller was filed before the statute of limitations

22   would have otherwise expired.    Id. at 1075.   Miller, therefore,

23   does not speak to the question posed here.7


          7
            For the same reasons we think Miller inapposite, we think
     that Bischel and Neill, which relied on Miller, carry little
     persuasive force. Like the government, the Bischel and Neill
     courts reasoned that because, according to Miller, a section 3292

                                       14
1              The government's final textual argument looks to

2    subsection 3292(b), which provides that the "period of

3    suspension . . . shall begin on the date on which the official

4    request [for evidence from the foreign nation] is made and end on

5    the date on which the foreign court or authority takes final

6    action on the request."   18 U.S.C. § 3292(b).   The government

7    argues that because the period of suspension begins "on the date

8    the official request [for evidence] is made" and not on the date

9    that the application for a suspension is granted, section 3292

10   contemplates retrospective tolling.8    The government further

11   maintains that there is nothing in the language of subsection

12   3292(b) to suggest that such tolling cannot be effective even

13   after the limitations period has run.    In making this argument,

14   the government relies on Bischel and Neill, which cite subsection




     application is limited only by the requirement that it be filed
     before the return of an indictment, see Miller, 830 F.2d at 1076,
     it need not be filed before the statute of limitations runs. See
     Bischel, 61 F.3d at 1434; Neill, 940 F. Supp. at 336. However,
     because Miller did not consider whether an application must be
     filed before the statute of limitations has expired, the Bischel
     and Neill courts' reliance on that decision was misplaced.
          8
            The court must rule upon an application filed under
     section 3292 "not later than thirty days after the filing of the
     application." 18 U.S.C. § 3292(a)(2). Accordingly, there could
     be a scenario in which the government files an application under
     section 3292 before the statute of limitations has expired but
     the court does not rule on that application until after the
     expiration of the limitations period. Because we are not
     confronted with that scenario in the instant case, we address
     only whether an application under section 3292 must be filed
     before the statute of limitations has expired and not whether the
     district court must also rule on such application before
     expiration of the limitations period.

                                     15
1    3292(b) for the same proposition.    See Bischel, 61 F.3d at 1434;

2    Neill, 940 F. Supp. at 336.

3               We find this reasoning unpersuasive.   The fact that the

4    statute requires a retroactive start date for the suspension

5    period does not speak to whether applications for a suspension

6    must be filed before the statute of limitations has otherwise

7    run.   We find nothing inconsistent about section 3292 requiring

8    that applications to suspend the statute of limitations be filed

9    before the statute of limitations has expired and also requiring

10   that the starting date of the suspension period be backdated to

11   the day on which the request for foreign evidence was made.    When

12   interpreting a statute, we are required "to give effect, if

13   possible, to every clause and word of a statute," Duncan, 533

14   U.S. at 174 (citations and internal quotation marks omitted), and

15   to "avoid statutory interpretations that render provisions

16   superfluous," Anderson, 15 F.3d at 283.   We therefore consider

17   the language of subsection 3292(b), which requires the court to

18   start the suspension period retroactively on the date the

19   evidence was requested, together with subsection 3292(a), which,

20   as we have said, contemplates that a statute of limitations be

21   "running" at the time an application for suspension is filed.     We

22   will not adopt a statutory interpretation that would render

23   superfluous the timing provision of subsection 3292(a) when it

24   can be read consistently with the retroactive start date

25   requirement of subsection 3292(b).



                                     16
1              We therefore conclude that the "plain language" of 18

2   U.S.C. § 3292 requires that an application to suspend the running

3   of the statute of limitations be filed before the limitations

4   period has expired.9

5   B.   The "Whole Act" Rule

6              We also reject the government's reading of section 3292

7   on account of the "whole act" rule, which "exhorts us to read a

8   section of a statute not 'in isolation from the context of the


          9
           The legislative history of section 3292 is meager. It
    consists of a single House Report. H.R. Rep. 98-907 (1984),
    reprinted in 1984 U.S.C.C.A.N. 3578. Referring broadly to the
    motivation for the Comprehensive Crime Control Act of 1984, the
    Report notes:

               The use of offshore banks to launder the
               proceeds of criminal activities and to evade
               taxes has become an increasing problem for
               federal prosecutors. . . . Once funds are
               traced to offshore banks, federal prosecutors
               face serious difficulties in obtaining
               records from those banks in both the
               investigative and trial stages of a
               prosecution. . . . The procedures that must
               be undertaken in other countries in order to
               obtain the records generally take a
               considerable period of time to complete. . .
               . The delays attendant in obtaining the
               records from other countries create both
               statute of limitation and Speedy Trial Act
               problems. If the records are essential to
               the bringing of charges, the delay in getting
               the records might prevent filing an
               information or returning an indictment within
               the time period specified by the relevant
               statute of limitation.

    Id. at 3578-79.

              "[W]e do not resort to legislative history . . . [when]
    a statutory text . . . is clear." Ratzlaf v. United States, 510
    U.S. 135, 147-48 (1994). Having found such clarity in section
    3292, we see no reason to depart from the general rule here.

                                    17
1    whole Act' but to 'look to the provisions of the whole law, and

2    to its object and policy.'"   Pacheco, 225 F.3d at 154 (quoting

3    Richards, 369 U.S. at 11 (internal quotation marks omitted)),

4    cert. denied, 533 U.S. 904 (2001).

5              Here, the relevant "whole act" is the Comprehensive

6    Crime Control Act of 1984, Pub. L. No. 98-473, tit. II, 98 Stat.

7    1837 (1984) (the "CCCA").   The CCCA amended the United States

8    Code by adding, inter alia, 18 U.S.C. § 3292, the statute at

9    issue on this appeal, and 18 U.S.C. § 3161(h)(9), a complementary

10   provision of the Speedy Trial Act.

11             Section 3292, the statute we are examining, permits an

12   extension of the statute of limitations if a proper application

13   is "filed before return of an indictment."   18 U.S.C.

14   § 3292(a)(1) (emphasis added).   The Speedy Trial Act provides for

15   a period of time after the return of the indictment within which

16   the trial of the defendant on criminal charges contained in that

17   indictment must begin -- subject to a variety of exclusions.     See

18   18 U.S.C. § 3161(c)(1).   The provision added to the Speedy Trial

19   Act by the CCCA was such an exclusion.   It permits a "period of

20   delay, not to exceed one year," 18 U.S.C. § 3161(h)(9), to "be

21   excluded . . . in computing the time within which the trial . . .

22   must commence," id. § 3161(h), if the district court finds that

23   "an official request, as defined in section 3292 of this title,




                                      18
1    has been made for evidence" from a foreign country.    Id.

2    § 3161(h)(9).10

3                Thus, when section 3292 is read alongside the CCCA's

4    complementary amendment to the Speedy Trial Act, the significance

5    of section 3292's phrase "before return of an indictment" is

6    clear.    If the government anticipates a delay on account of a

7    request for foreign evidence before indictment, it can seek to

8    suspend the statute of limitations pursuant to section 3292.      If

9    it anticipates such a delay after the indictment is returned, but

10   before trial, it can separately apply for relief under section

11   3161(h)(9) of the Speedy Trial Act.    In other words, indictment

12   serves as the dividing line between when the government can turn

13   to section 3292 and when, instead, it must turn to section

14   3161(h)(9).    Consequently, and contrary to the government's

15   contention, requiring that an application under section 3292 be

16   filed before the statute of limitations expires does not render

17   superfluous section 3292's requirement that the application be

18   filed before the indictment is returned.11   That requirement


          10
            This section does not require that the statute of
     limitations be suspended pursuant to section 3292 in order for
     the court to exclude time under the Speedy Trial Act. It
     requires only that, after indictment, a party be able to
     demonstrate that it has made the type of request for foreign
     evidence "defined in section 3292." 18 U.S.C. § 3161(h)(9).
          11
             Our interpretation of section 3292 is also consistent
     with internal Justice Department guidelines. A manual advises
     federal prosecutors: "Make sure you file [the section 3292
     application] before the statute runs; don't wait until the
     foreign country responds to the request." Executive Office for
     United States Attorneys, Evidence for Experienced Criminal
     Litigators E-18 (1993).

                                      19
1    remains fully relevant to the extent that it distinguishes

2    between when it is appropriate for a prosecutor to apply for

3    relief under section 3292 and when it is appropriate to seek

4    relief under section 3161(h)(9).

5    C.   The Doctrine of Constitutional Avoidance

6               Neither party disputes the constitutionality of an

7    interpretation of section 3292 that requires an application to be

8    filed before the statute of limitations expires.   But Bourke

9    argues that an interpretation of section 3292 that permits an

10   application to be filed after the statute of limitations has run

11   would violate the Ex Post Facto Clause and the Due Process

12   Clause.   Because we reject that interpretation of section 3292,

13   we need not determine whether Bourke's constitutional arguments

14   have merit.   We note, however, that "where a statute is

15   susceptible of two constructions, by one of which grave and

16   doubtful constitutional questions arise and by the other of which

17   such questions are avoided, our duty is to adopt the latter."

18   Jones v. United States, 529 U.S. 848, 857 (2000) (citations and

19   internal quotation marks omitted).    Although we do not think that

20   this principle alone requires the result we reach, this result

21   allows us to avoid close analysis of what is, at least, a non-

22   frivolous constitutional objection.

23                              CONCLUSION

24              For the foregoing reasons, the judgment of the district

25   court is affirmed.



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