Limit Set to Tolling Statute of Limitations in FCPA Case, Lawyers Say
A Foreign Corrupt Practices Act case showed the limits that a request under a mutual legal assistance treaty (MLAT) can have for tolling a statute of limitations, two Holland & Knight attorneys said in an Aug. 29 blog post. The attorneys, Wifredo Ferrer and Gary Klubok, wrote that a recent district court decision tossing four counts of FCPA and other violation allegations on the grounds that the government cannot use multiple MLATs as a tool to extend tolling offers lessons for defense attorneys: criteria for when MLAT tolling orders end, and that MLAT tolling is offense-specific and not person-specific.
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In the Texas district court case, the U.S. charged a Portuguese-Swiss banker, Paulo Jorge Da Costa Casqueiro Murta, with helping launder bribery proceeds in an FCPA scheme involving a Venezuelan state-owned energy company. In 2014, DOJ asked Swiss authorities, which were subject to an MLAT, for some banking records. Under the law, DOJ is able to get court orders to toll the statute of limitations until an MLAT request is answered. DOJ got the tolling order in 2015.
The Swiss then fulfilled the request, leading to the indictment of two defendants, and the charging of another four with FCPA and other violations. More defendants were indicted in 2017, the blog post said. DOJ then got a second tolling order in 2017, which was expected to last three years. Later that year, DOJ again asked the Swiss authorities for information under a "supplemental" MLAT request. Murta was charged in a superseding indictment in 2019, the lawyers said.
Murta challenged the indictment, saying the 2017 tolling order was improperly granted. The court tossed four counts against Murta, finding that nothing in the law allows the government to issue multiple MLATs as a tool to extend tolling. Under this ruling, the tolling order lapses when foreign authorities give the information in the MLAT, there is no confusion about the nature of the MLAT or the parties subject to the MLAT are indicted, the blog post said.
"MLAT tolling is offense-specific, not person-specific," the lawyers said. "Murta, the defendant, was not indicted in 2015 or 2017, nor was he a subject or target during the 2015 and 2017 indictments," though DOJ said he was part of the same scheme as the 2015 and 2017 defendants. "The tolling orders and statute of limitations timetable that applied to the 2015 defendants, however, also applied to Murta because tolling orders are offense-specific, not person-specific.
"FCPA practitioners should analyze the MLAT tolling statute, 18 U.S.C. § 3292, to verify that court-issued MLAT tolling orders apply to their clients."