Background
Federal authorities investigated a scheme in which Hyoung Nam “Brian” So allegedly accepted millions of dollars to help a South Korean automotive supplier obtain a General Motors contract. The government alleged that the bribe money was transferred from South Korea through hawala brokers and delivered to So in the United States.
Because relevant evidence was in South Korea, the United States submitted a formal assistance request under the countries’ mutual legal assistance treaty in July 2017. In October 2020, the district court entered an order under 18 U.S.C. § 3292 suspending the limitations periods for offenses described in the government’s application while South Korea responded to the request.
A grand jury indicted So in March 2022 for conspiracy to commit federal funds bribery under 18 U.S.C. § 371. After the district court rejected his limitations defense and declined to submit the foreign-request tolling issue to the jury, So was convicted and sentenced to two years in prison, three years of supervised release, and a $250,000 fine.
The Court’s Holding
The Ninth Circuit affirmed. It held that § 3292 tolling is offense-specific, but a tolling order need not identify an offense by its formal name or statutory citation. Courts instead determine from the order, application, and supporting record whether the substance of the charged offense was covered. Here, the application described the agreement, overt acts, and criminal intent underlying the charged bribery conspiracy, so the order tolled that offense despite the government’s erroneous statutory label.
The court also held that a foreign government takes “final action” under § 3292 only when it provides a dispositive response to every item in the official request. That determination rests on an objective comparison of the request and the foreign government’s responses. Because South Korean officials continued trying into 2021 to authenticate reports sought by the United States, neither their April 2019 production nor their November 2020 response constituted final action. The limitations period therefore remained suspended long enough to make the March 2022 indictment timely.
Finally, the district judge properly decided the final-action issue without submitting it to the jury. The relevant conduct involved communications between U.S. and South Korean officials, not facts constituting an element of So’s offense. Judge Lee dissented, reasoning that neither the tolling application nor the order sufficiently identified the § 371 conspiracy offense and that the conviction was therefore time-barred.
Key Takeaways
- Section 3292 tolling applies only to offenses covered by the district court’s order and supported by the statute’s required findings.
- An application and order need not cite the correct statute if their substantive description sufficiently identifies the offense being tolled.
- Final action on a foreign-evidence request occurs only after the foreign authority gives a dispositive response to every requested item.
- A judge may resolve a tolling dispute based on foreign-government responses when the disputed facts are not part of the charged offense.
Why It Matters
The decision clarifies how Ninth Circuit courts must identify offenses covered by foreign-evidence tolling orders. Prosecutors cannot rely merely on an offense’s close relationship to a listed crime, but an incorrect label or citation will not defeat tolling when the application substantively describes the charged offense.
The ruling also confirms that incomplete productions and continuing efforts to authenticate foreign records may postpone “final action,” extending the limitations period for years. It places those foreign-request questions with the judge when they do not concern facts constituting the crime itself.