[00:00:04] Speaker 01: Good morning, Your Honors. [00:00:05] Speaker 01: May it please the Court, Daniel Ahn for Mr. So. [00:00:09] Speaker 01: If I may, I'd like to reserve five minutes for rebuttal. [00:00:14] Speaker 01: Your Honors, Judge LaGoya's unanimous decision for the 11th Circuit in Getve, which is fully in accord with this Court's precedence, makes resolution of the principal issue on this appeal even more straightforward. [00:00:32] Speaker 01: And I'd like to focus on that issue this morning. [00:00:34] Speaker 00: So isn't that decision the minority view? [00:00:38] Speaker 00: There's not a lot of case law out there, but that seems to be the only case that has decided the question in that fashion. [00:00:47] Speaker 01: Well, it is the first and only circuit decision. [00:00:51] Speaker 00: Well, there's the Fifth Circuit decision in Wilson. [00:00:54] Speaker 01: Well, Wilson is not distinguishable in the sense that, or it doesn't go the other way, Your Honor. [00:01:02] Speaker 01: So if Getve actually cited Wilson and said that the decisions are harmonious, and it's harmonious because of the standard. [00:01:12] Speaker 01: So the standard is offenses unambiguously offense specific. [00:01:16] Speaker 00: So what does that mean? [00:01:17] Speaker 00: So I haven't seen any case that has said what you advocate, what you argued in your brief, which is that the offenses have to be listed by statutory reference. [00:01:30] Speaker 00: And Getve didn't say that either. [00:01:31] Speaker 00: In fact, explicitly said that's not required. [00:01:34] Speaker 00: So I'm left wondering, what does that language mean? [00:01:37] Speaker 00: What does offense-specific mean? [00:01:40] Speaker 01: Well, our position is not that a statutory citation is the only way to satisfy the statute. [00:01:45] Speaker 01: It's the clearest way to satisfy the statute. [00:01:48] Speaker 01: But there are other ways to satisfy the statute as well. [00:01:51] Speaker 01: That's what Getfey stands for, Your Honor. [00:01:54] Speaker 00: So, and what are those other ways? [00:01:55] Speaker 00: Is sufficient information from which the District Court could determine what offense or offenses are being, the statutory limitations is being told to it? [00:02:03] Speaker 01: That's right. [00:02:04] Speaker 01: So the offense has to be identified with definiteness. [00:02:07] Speaker 01: and specificity such that it makes it clear to the district court which charge is being told. [00:02:15] Speaker 01: So a statutory citation would satisfy that standard. [00:02:20] Speaker 01: Yet they cited Wilson. [00:02:22] Speaker 01: Wilson said under circuit precedent, a charge 1957 is commonly referred to as money laundering and that would have made it clear to the district court under circuit precedent in that specific case. [00:02:36] Speaker 01: that that charge was being told. [00:02:38] Speaker 01: In this case, Your Honor, we have something that is far different. [00:02:43] Speaker 01: The charge of defense was 371. [00:02:45] Speaker 01: It wasn't even mentioned in the application. [00:02:49] Speaker 00: But that raises an interesting point. [00:02:51] Speaker 00: It was mentioned in the treaty request, under the MLAT request. [00:02:56] Speaker 00: So was that request submitted to the district court? [00:03:03] Speaker 01: It seems like it was not submitted to the district court. [00:03:06] Speaker 01: So we actually made an effort to comb the record to see whether it was actually before the district court on the tolling application. [00:03:14] Speaker 01: The tolling application does reference an exhibit, but it's unclear whether that was the MLAB. [00:03:20] Speaker 01: From what appears in the record, it appears that they were relying only on the U declaration, Your Honor, and then the proposed order. [00:03:29] Speaker 01: So in this case, Your Honor, I would just say, going back to the court's question, what does offense mean? [00:03:38] Speaker 01: In Getve, they said offense means something that is definite and specific. [00:03:42] Speaker 01: Now that definition, that term, is consistent with Judge Bumate's careful construction of the word offense in Randall as well. [00:03:52] Speaker 01: It's offense-specific, it's discreet, it refers to a specific charge. [00:03:57] Speaker 00: So you have a different procedural posture in that this is as part of an investigation. [00:04:05] Speaker 00: So this is not a charging document. [00:04:07] Speaker 00: This is not evidence being presented to support criminal charges. [00:04:12] Speaker 00: This is in grand jury investigation. [00:04:15] Speaker 00: So it seems that the government is [00:04:18] Speaker 00: in a different arena at that point. [00:04:20] Speaker 00: They know some information, but they're trying to find more. [00:04:24] Speaker 00: So they don't have to list the offenses by the statute number. [00:04:29] Speaker 00: You've said that. [00:04:32] Speaker 00: Here they've described a course of conduct with great detail that makes it clear that they're concerned about bribery and money laundering, that this is what this course of conduct suggests. [00:04:45] Speaker 00: And your position is that's not good enough because they didn't list the federal, I forget what they call it, federal funds bribery or the other statute. [00:04:59] Speaker 01: It's not good enough, Your Honor, because the course of conduct that is alleged in the application is fully consistent with the five enumerated offenses that they listed in the application as well. [00:05:11] Speaker 01: There's nothing that uniquely identifies 371 conspiracy or 666 federal funds bribery. [00:05:18] Speaker 01: in that application. [00:05:19] Speaker 00: So they did list section 1952 and also 371, which is conspiracy, or at least in that, 371 at least was listed in the MLAT. [00:05:29] Speaker 00: Correct. [00:05:30] Speaker 00: 1952 describes unlawful activity to include bribery. [00:05:37] Speaker 00: And then they described bribery in great detail. [00:05:40] Speaker 01: But they also cited the Honest Service's bribery statute, Your Honor. [00:05:44] Speaker 01: And so a plain reading of the application is there [00:05:48] Speaker 01: They're tolling the statute for these five offenses. [00:05:53] Speaker 01: These five offenses bespeak bribery. [00:05:56] Speaker 01: There's nothing about 666. [00:05:58] Speaker 00: That's a completely different... But isn't the difference really between 666 and 1952 just the hook for federal jurisdiction? [00:06:05] Speaker 00: I mean, 1952, if it's... [00:06:08] Speaker 00: travels in interstate or foreign commerce or uses the mail. [00:06:12] Speaker 00: It's the basis for the federal jurisdiction. [00:06:14] Speaker 00: And in 666, it's federal funding to, in this case, I think of a car manufacturer, GM. [00:06:21] Speaker 00: So that's the hook. [00:06:23] Speaker 00: But the conduct is the same, the use of bribery. [00:06:28] Speaker 01: I don't think it completely overlaps, Your Honor. [00:06:30] Speaker 01: So I'm speaking from memory on this court's case law. [00:06:33] Speaker 01: But for honest services bribery, you do need a quid pro quo. [00:06:38] Speaker 01: I'm not sure if that's the law in the Ninth Circuit for 666. [00:06:43] Speaker 01: And, of course, my friend on the other side mentions quid pro quo quite a bit. [00:06:47] Speaker 00: Well, 666 in Section A1B describes a quid pro quo. [00:06:53] Speaker 00: You're soliciting or demanding, accept or agree to accept anything of value, intended to be influenced or rewarded in connection with any business transaction. [00:07:02] Speaker 00: It's like there's, we're giving you money, you're going to give us this contract. [00:07:06] Speaker 01: But the case law, [00:07:07] Speaker 01: makes clear that's simply the offer. [00:07:09] Speaker 01: The offer completes the offense. [00:07:11] Speaker 01: There doesn't have to be a quid pro quo. [00:07:13] Speaker 01: Whereas on a services fraud, you do need a quid pro quo. [00:07:16] Speaker 01: The law is clear on that. [00:07:18] Speaker 01: And so there are discrete offenses. [00:07:20] Speaker 01: But I think the main point is, under Getfey, how could it possibly be clear to the district court when that application was before him [00:07:29] Speaker 02: Can you address this somewhat related to Judge Beatty's question? [00:07:32] Speaker 02: In terms of evidence needed to prove the bribery and the conspiracy, are they really significantly different to prove the two claims? [00:07:44] Speaker 02: It seems like, again, they originate from the same set of facts. [00:07:48] Speaker 01: Well, I think the quid pro quo is a differentiating factor, Judge Lee, and a pretty important one, right? [00:07:55] Speaker 01: Because that speaks to what elements are essential to complete the offense. [00:08:00] Speaker 01: That actually hits both prongs of Judge Lagoia's test in Getve, because not only do you need to cite the statute for the tolling purposes, but you need to dive deeper, because under step two in Getve, [00:08:13] Speaker 01: the court made clear that it has to be clear to the district court what evidence needs to be elicited before the grand jury. [00:08:21] Speaker 01: That's an elements question. [00:08:23] Speaker 02: I couldn't tell the facts fully but it seemed like in that case [00:08:29] Speaker 02: there were discrete acts because these were tax evasions over a number of years and it looks like maybe in earlier years he actually filed the tax but maybe inaccurately and the last couple of years he didn't file that at all and the issue was trying to tag on to those two last years where he didn't file the tax returns at all. [00:08:46] Speaker 02: So those were somewhat, again, the facts aren't that clear from the case but it seems like they were different acts although they're all tax fraud. [00:08:55] Speaker 02: So in that case, [00:08:57] Speaker 02: It seems like it's a little bit different here where it seems like both offenses really originate from the same set of facts. [00:09:09] Speaker 01: I don't think so, Your Honor. [00:09:10] Speaker 01: I mean, I think certainly bribery, but the way that the government drafted its tolling application [00:09:20] Speaker 01: It mentioned specifically Honest Services Bribery, Travel Act, which encompasses an array of bribery offenses. [00:09:29] Speaker 00: But you've never answered my question about the fact that we're in an, it happens during an investigation. [00:09:35] Speaker 00: So, you know, we can see from the statute that Congress did not want to allow criminal offenses to go unpunished because critical evidence was in a foreign country and it takes time to get it. [00:09:47] Speaker 00: So they provide a mechanism to toll the statute of limitations so that while before an indictment issue, so this is during the investigatory stage, the government can seek to have the statute told so they can obtain the evidence they need. [00:10:01] Speaker 00: But that necessarily indicates that the evidence may not be what they think it might be, that it might reveal something else that they didn't know. [00:10:09] Speaker 00: And so your position is, [00:10:12] Speaker 00: Seems to be they don't have to list the statutes But if they do and they don't list all of them and they discover evidence later That supports another charge then they should be penalized for that which wouldn't in turn encourage the most Bare-bones drafting of these applications, which would not be good for anyone or they [00:10:35] Speaker 00: They can't find evidence of additional crimes and that are closely related to the conduct that they described. [00:10:42] Speaker 00: It's not as if they then decided to charge him with failing to file tax returns or drug trafficking or something wholly unrelated to this. [00:10:49] Speaker 00: They described a bribery scheme and they charged him with bribery. [00:10:54] Speaker 01: Let me make two responses to that, Your Honor. [00:10:57] Speaker 01: Then I'd like to reserve my time. [00:11:00] Speaker 01: The first is that the term offense [00:11:03] Speaker 01: The meaning of that term, the plain meaning of that term, doesn't vary depending on whether we're talking about a charging context or a conviction context. [00:11:11] Speaker 01: We know that because this court's precedent in Miranda cited to case law that was all over the map on that. [00:11:18] Speaker 01: It's the plain meaning that controls. [00:11:20] Speaker 01: And here, that requires definiteness and specificity, which was lacking here. [00:11:24] Speaker 01: But to your Honor's point, [00:11:27] Speaker 01: Three points here. [00:11:28] Speaker 01: Number one, I think the government is particularly ill-suited to make this claim here because the MLAT, as Your Honor mentioned, included 371. [00:11:35] Speaker 01: They knew about that charge. [00:11:38] Speaker 01: The tolling application was three years later in 2020. [00:11:42] Speaker 01: So it's not like, oh my goodness, this big revelation that we subsequently learned from the MLAT materials gave us this idea about 371. [00:11:50] Speaker 01: They knew it three years prior. [00:11:52] Speaker 01: Number two, one year after the MLAT was filed, [00:11:56] Speaker 01: Mr. Lee, whose documents they were seeking from the MLAT flipped, began cooperating. [00:12:03] Speaker 01: So now they had the source of the documents that they were, excuse me, that they were seeking, the source himself. [00:12:09] Speaker 01: Number three, this investigation began in 2015. [00:12:12] Speaker 01: The tolling application was 2020. [00:12:17] Speaker 01: Five years had elapsed. [00:12:19] Speaker 01: Most statutes' limitations in the criminal context are just five years. [00:12:22] Speaker 01: Surely they knew what offenses were there. [00:12:25] Speaker 01: But more directly to your Honor's point, [00:12:27] Speaker 01: I think this issue is overstated about this omniscience. [00:12:31] Speaker 01: The vast majority of criminal cases, the U.S. [00:12:36] Speaker 01: Attorney's Office knows before it submits an MLAT what offenses are involved. [00:12:41] Speaker 01: The MLAT is simply to find evidence in support of those offenses. [00:12:47] Speaker 01: In the small sliver of cases where the MLAT might actually provide evidence of a new crime, there is a congressionally prescribed mechanism that the government can avail itself of, and that is get another tolling order or seek another MLAT. [00:13:05] Speaker 01: And ultimately, this boils down to, well, we don't want to do the extra paperwork. [00:13:10] Speaker 01: I mean, that's the burden. [00:13:11] Speaker 01: But that burden didn't stop Chief Justice Roberts from saying, get a warrant to search a cell phone, right? [00:13:18] Speaker 01: I mean, the work here is far less burdensome than that. [00:13:21] Speaker 01: Didn't stop Justice Scalia from saying, get a tracker warrant if you want to put a tracker on a car. [00:13:26] Speaker 01: The real concern, in other words, Your Honor, [00:13:29] Speaker 01: It's not that they need to do more paperwork. [00:13:31] Speaker 01: It's the one that get they raised. [00:13:33] Speaker 01: That the government can then sweep in and prolong the statute of limitations for all manner of offenses not mentioned in the application. [00:13:40] Speaker 01: And the solution to that is not to rend the statutory language. [00:13:45] Speaker 01: It's not to give the word offense a non-plain meaning. [00:13:49] Speaker 00: But you're saying they don't, you're not arguing, although you did argue quite explicitly before the district court and in your opening brief, before Get They, that they had to list these, the statutory references. [00:14:01] Speaker 00: So the responses and the government will never list the statutory references in these applications. [00:14:06] Speaker 00: Just write them very broadly. [00:14:09] Speaker 00: Right? [00:14:09] Speaker 00: I mean, isn't that what that result would encourage? [00:14:13] Speaker 01: I don't think so, Your Honor. [00:14:14] Speaker 01: I think if the court follows its sister circuit in Getve and says it has to be definite, it has to be specific, so the district court knows which specific discrete charge is being told, this fails, the incentive would be for the government to be more specific. [00:14:31] Speaker 02: If I can ask a question, suppose the government is investigating drug trafficking and they ask for the tolling application for distribution, but it turns out they can't charge him with that and then they try to charge him with attempted distribution, which I think is a separate statutory provision. [00:14:49] Speaker 02: So under your reading, if the government didn't mention attempted distribution in the application, then the government can't charge him with it, even though I think, you know, [00:14:59] Speaker 02: distribution, attempted distribution are essentially, you know, very, very similar. [00:15:04] Speaker 01: They're very similar, but I think the question would be, is attempted distribution identified with definiteness and specificity such that it would make it clear to the district court that that was the charge that was being told? [00:15:21] Speaker 01: And that would require an analysis of what is in the application, Your Honor. [00:15:27] Speaker 01: It really, I don't mean to say it depends, but it sort of depends on what's in the application. [00:15:32] Speaker 01: But I think the incentive at the end of the day would be for the government to turn square corners, and that's really what it should do in this context. [00:15:42] Speaker 01: I'd like to reserve the balance of my time. [00:15:45] Speaker 00: Actually, you're over time. [00:15:47] Speaker 01: I'm sorry? [00:15:48] Speaker 01: Over time? [00:15:48] Speaker 01: I am so sorry. [00:15:49] Speaker 01: I apologize. [00:15:51] Speaker 00: So there is no balance, but I will give you a couple minutes. [00:15:54] Speaker 00: Thank you so much. [00:16:12] Speaker 03: Good morning MPs of the court, David P. on behalf of the United States. [00:16:16] Speaker 03: This court should affirm because the government charged defendant within the statute of limitations after tolling the period under 18 USC section 3292. [00:16:25] Speaker 03: Every court that has addressed this issue agrees with the government that section 3292 does not require a tolling application or order to reference any statutory code and now the defense agrees with this too. [00:16:41] Speaker 03: The two circuit court cases and the five district court cases that have commented on this are all aligned. [00:16:48] Speaker 03: So what does Section 3292 require? [00:16:51] Speaker 03: Well, we looked at the plain language. [00:16:53] Speaker 03: The plain language of the statute does not mention code citation. [00:16:57] Speaker 03: Instead, it simply requires that the application indicate that evidence of an offense is in a foreign country and that the court must find by a preponderance of the evidence that an official request has been made for such evidence and that it reasonably appears or appeared when the request was made that such evidence is or was in such foreign country. [00:17:20] Speaker 03: So put simply, [00:17:22] Speaker 03: The government must show and the court must find that there is reason to believe evidence of an offense is in a foreign country. [00:17:29] Speaker 03: So the next key question is, what is an offense? [00:17:32] Speaker 03: Now, the defense has said an offense means offense specific. [00:17:39] Speaker 03: And respectfully, I would say that that is question begging. [00:17:43] Speaker 03: Their definition in their brief from Black's Law Dictionary is that an offense is a violation of law. [00:17:50] Speaker 03: Now, a statute can encapsulate an offense, but I think nobody would disagree if I said murder is an offense. [00:17:58] Speaker 03: And murder is not a statute. [00:17:59] Speaker 03: It's governed by multiple statutes. [00:18:01] Speaker 03: So is robbery. [00:18:03] Speaker 03: And more relevant to this case, bribery is an offense, a violation of the law, and conspiracy is an offense, a violation of the law. [00:18:12] Speaker 03: So it can be a statute, but generally we look to what the plain language says. [00:18:16] Speaker 03: You must show, the government must show that there is an offense. [00:18:20] Speaker 02: If you look at the statutory language 3292 and it says the district court shall suspend the running of the statute of limitation for the offense. [00:18:31] Speaker 02: So the offense is referring to the statute of limitations and various offenses can have, depending on the statute, different statute of limitations. [00:18:41] Speaker 02: when they refer to the word offense, it's tied to statute of limitations, so it seems like it is referring to a specific statutory code there. [00:18:51] Speaker 03: At the time of the application, the government may not know which statute is ultimately going to charge. [00:18:56] Speaker 03: At the point of indictment where we decide whether or not the government brought its charges within the statute of limitations, those offenses have been reduced to statutory codes. [00:19:07] Speaker 03: And so we will know at the time of indictment whether or not the offense, in this case conspiracy to commit federal funds bribery, was brought in time. [00:19:16] Speaker 03: And the question then is once we've established what offense is, [00:19:20] Speaker 03: Well, how much specificity does the government need to show and how much specificity does the court have to find about that offense and about evidence being in a foreign country? [00:19:32] Speaker 03: Well, the statute says that the government must indicate that evidence of the offense is in a foreign country. [00:19:39] Speaker 03: What does that mean? [00:19:41] Speaker 03: Well, at this stage, as Judge Beatty correctly pointed out, the government is only in the investigative portion of its process. [00:19:49] Speaker 03: And so it may not necessarily know exactly which charge it will bring, what those elements will entail. [00:19:56] Speaker 03: All it has to do is provide enough, only as much as you need, to be able to connect the evidence sought from the foreign country to an offense, a violation of the law. [00:20:07] Speaker 03: Here, conspiracy to commit bribery. [00:20:12] Speaker 02: Because now you're tying it, you know, charging with conspiracy, the statute of limitations runs from the last overt act. [00:20:19] Speaker 02: So here you have a potential that the statute of limitations will just go way beyond any other statute that was listed in the application. [00:20:27] Speaker 02: And that's, I think, a lot more troubling here that gives the government incredible power here to keep on extending the statute of limitations. [00:20:35] Speaker 02: This isn't like the hypothetical I gave your friend on the other side about tempted versus actual distribution or very similar, the conspiracy. [00:20:42] Speaker 02: extend far beyond what the district court saw and said, okay, I see these offenses, I'll extend it. [00:20:48] Speaker 02: With conspiracy, it could be years beyond that. [00:20:52] Speaker 03: Well, the government described in great detail a conspiracy. [00:20:57] Speaker 03: We didn't use the word, but we described an agreement, a quid pro quo, and the execution of that conspiracy, in fact, which is maybe more than we even needed to. [00:21:07] Speaker 03: And so it wouldn't come as a surprise to the court that we were dealing with a conspiracy and that the issue that Your Honor is identifying would have potentially been there. [00:21:17] Speaker 03: That's always true in a conspiracy case that we're limited by the last overt act and 3292 is aware of that. [00:21:26] Speaker 02: But the court may have just accepted the government's word that [00:21:29] Speaker 02: uh... you are investigating uh... conspiracy for whatever reason uh... and just accepted the application as what the government presented well the government never gave the court its word that it was [00:21:41] Speaker 03: only investigating non-conspiracy claims. [00:21:44] Speaker 02: Well, that's not what the statute, that's not what 3292 requires, Your Honor. [00:21:57] Speaker 03: So, for example, if the government had just listed statutes [00:22:02] Speaker 03: and said, we want evidence of these crimes. [00:22:05] Speaker 03: We've listed the statutes. [00:22:06] Speaker 03: I think that would be insufficient under 3292. [00:22:09] Speaker 03: That would not be enough for a foreign government to understand what kind of evidence we're looking for. [00:22:15] Speaker 03: And so the court correctly looked not just to what we listed, but the fact that we alleged both in the application supported by the declaration of the agent. [00:22:25] Speaker 03: That's where the court is able to determine whether or not an offense has been committed [00:22:31] Speaker 03: and whether or not evidence is in another country. [00:22:33] Speaker 00: Did the government submit the amlet to the district court with the application? [00:22:38] Speaker 03: I too have tried to figure this out, Your Honor. [00:22:40] Speaker 03: It does not appear to be in the record. [00:22:42] Speaker 03: The application itself makes reference to it, and when I contacted the district court clerk, it appears that it didn't make it on to the docket. [00:22:52] Speaker 03: So perhaps it was submitted, but it did not make it onto the docket. [00:22:57] Speaker 03: of the MLAT. [00:22:58] Speaker 03: But that is not important here, where the declaration is the evidence. [00:23:04] Speaker 03: There are numerous cases that discuss what evidence is appropriate. [00:23:08] Speaker 03: An MLAT is not a sworn statement. [00:23:10] Speaker 03: The declaration is, and the declaration is here. [00:23:13] Speaker 00: But here it listed conspiracy. [00:23:15] Speaker 00: So that would, if it were submitted to the district court, would at least be some additional indication of the offenses that the government seeks to toll. [00:23:25] Speaker 03: I agree that would have been better for us, Your Honor, but that is not essential here where we describe in great detail a conspiracy in the sworn declaration. [00:23:33] Speaker 03: As I said, just listing codes is both not required, but also on its own not helpful, either to the district court or to the foreign government. [00:23:42] Speaker 03: And if we look for what level of specificity the government needs to state, [00:23:47] Speaker 03: and what the district court needs to find, it's always very fact-specific. [00:23:53] Speaker 03: And this is an inquiry that the court must undertake. [00:23:56] Speaker 03: But in every case that we've seen, or almost every case that the parties have cited, they agree that a generic category or description of a violation of law is sufficient. [00:24:07] Speaker 00: So why does the government include statutory references then? [00:24:12] Speaker 00: Why did you list those? [00:24:13] Speaker 03: It's helpful. [00:24:14] Speaker 03: They are shorthand. [00:24:16] Speaker 03: It's not confusing to do that. [00:24:20] Speaker 03: Those are the statutes that the government has the best evidence so far in its investigation to charge. [00:24:27] Speaker 03: But as Your Honor pointed out, the government may discover additional violations of the law that don't fit neatly within the listed statutes. [00:24:37] Speaker 03: Here, the government found later on that the most appropriate charge would be [00:24:42] Speaker 03: for attempting to commit 666. [00:24:46] Speaker 03: And so listing it should not be viewed as a limitation, and all of the cases are in agreement with that. [00:24:52] Speaker 03: So if we look to, Wilson is a great example of this, the Fifth Circuit case. [00:24:56] Speaker 03: They ultimately charged money laundering under 1957, but never listed that statute. [00:25:03] Speaker 03: And they never talked about the $10,000 transaction requirement that comes with 1957. [00:25:11] Speaker 03: And yet, the court there said, you listed money laundering, we all know what you mean. [00:25:15] Speaker 03: It's exactly what I said, Your Honor. [00:25:18] Speaker 03: Murder is an offense. [00:25:20] Speaker 03: Bribery is an offense. [00:25:22] Speaker 03: Money laundering is an offense. [00:25:23] Speaker 03: The fact that it was not reduced to a statutory citation is not relevant. [00:25:28] Speaker 00: So what do you think the decision in Getve means when it says the statute's offense specific? [00:25:38] Speaker 03: Well, it is offense-specific, Your Honor. [00:25:40] Speaker 03: Here, offense taken to mean a violation of the law. [00:25:45] Speaker 03: In Getve, they correctly articulated the standard. [00:25:47] Speaker 03: It's the standard that I've been saying that [00:25:50] Speaker 03: government must show and the court must find that there is evidence of an offense in a foreign country. [00:25:55] Speaker 03: They are correct there. [00:25:56] Speaker 03: I don't know the facts of the underlying district court case in Getve well enough to know if they applied the facts correctly. [00:26:04] Speaker 03: I have suspicions that they didn't because in Getve they found that tax evasion was told but failure to file tax returns was not. [00:26:13] Speaker 03: under USV speeds, the Supreme Court has said that a failure to file your taxes can be a predicate of tax evasion. [00:26:21] Speaker 03: It seems that maybe they got that wrong. [00:26:24] Speaker 03: But that's fact-specific. [00:26:25] Speaker 03: Courts will call it one way or the other. [00:26:28] Speaker 03: And so get they, though, does have the right standard. [00:26:31] Speaker 03: And that's the important part here. [00:26:33] Speaker 03: And so if we look at those cases, and Schwarzengruber is a great example, too, where the court allowed charges far outside of what was stated, [00:26:43] Speaker 03: The government listed a scheme related to wire fraud, money laundering, conspiracy to commit money laundering, and the court allowed tax fraud because it said that's intimately related to these other offenses. [00:26:57] Speaker 03: Compare that to our case, Your Honor, where we went into great depth describing who sought the bribe, who paid it, [00:27:04] Speaker 03: where that agreement was made, how they transported the money through illegal money brokers, and how it was driven in cash from Los Angeles to Detroit, and for what quid pro quo. [00:27:16] Speaker 03: That is a conspiracy to commit bribery. [00:27:20] Speaker 03: And so I would point out that I've given my definition. [00:27:24] Speaker 00: But who are the co-conspirators with Mr. So? [00:27:28] Speaker 03: Well, the bribe payer would be Mr. Lee. [00:27:31] Speaker 00: But he's not a co-conspirator. [00:27:32] Speaker 00: I mean, he's on the other side of the transaction. [00:27:34] Speaker 00: Isn't it somebody conspiring with Mr. So to solicit and accept the bribe? [00:27:38] Speaker 03: In the declaration, it mentions two Kims, a Choi and a Sun, who all participated in moving the bribe money, arranging the Huala network, driving the money across country to pay the bribe. [00:27:51] Speaker 03: These are all co-conspirators. [00:27:52] Speaker 00: Co-conspirators with Mr. Lee. [00:27:55] Speaker 03: Well, it's the same conspiracy, Your Honor. [00:27:57] Speaker 03: Not all co-conspirators need to even be aware of what other co-conspirators are doing to reach the ultimate objective. [00:28:03] Speaker 03: And so there was a conspiracy listed there, but I want to say too briefly, Your Honor, that I have given my definition of offense, which is a violation of the law could be reduced to statute. [00:28:14] Speaker 03: But even if the court agreed that an offense means specifically a statute, the government should still win here. [00:28:22] Speaker 03: The reason is because we don't have to, at this stage, meet the pleading standard of all the elements of the charge defense. [00:28:31] Speaker 03: And if you look at the jury instructions for 371, the ultimate charge, to commit federal funds bribery, which is 666, we alleged 90% of the elements in the application. [00:28:45] Speaker 03: And so turning just to 666, there are five elements, and this is from the jury instructions used at trial. [00:28:52] Speaker 03: Number one, defendant was an agent of General Motors. [00:28:55] Speaker 03: We said that. [00:28:56] Speaker 03: The defendant solicited, demanded, accepted, or agreed to accept a thing of value. [00:29:00] Speaker 03: Yes, $5 million. [00:29:02] Speaker 03: The defendant acted corruptly with the intent to be influenced or rewarded in connection with some business transaction or series of transactions. [00:29:09] Speaker 03: Yes, he was selling a manufacturing contract. [00:29:12] Speaker 03: Four, that this business transaction or series of transactions involved a thing of value of $5,000 or more. [00:29:19] Speaker 03: Yes, multimillion dollar. [00:29:20] Speaker 03: The only element we did not state in the application was that General Motors received federal funds. [00:29:29] Speaker 03: And as Your Honor pointed out, that is essentially a jurisdictional hook. [00:29:32] Speaker 03: And so we satisfied that to say that the court did not understand what offense based on what we alleged that because we didn't state one of five elements would reduce this statute to a real formalistic exercise. [00:29:49] Speaker 03: The same is true of 371. [00:29:50] Speaker 03: There are only three elements there. [00:29:52] Speaker 03: And again, we met all of them through the application except that it was the government that was defrauded. [00:29:58] Speaker 00: So what's the limiting principle? [00:30:01] Speaker 00: What limits what offenses are told by your interpretation of the statute? [00:30:07] Speaker 03: Well, again, it will be fact-specific. [00:30:08] Speaker 03: Courts will use the standard that has been articulated by every court. [00:30:12] Speaker 03: Neal, the case Neal, has proposed an outer limit of that in footnote two of that case, where allegations of tax fraud may not necessarily implicate drug importation. [00:30:26] Speaker 03: Even there, though, it depends what the government says in its application. [00:30:29] Speaker 03: If the government is talking about tax fraud, but mentions all sorts of transportation of drugs as well, that should be told as well. [00:30:37] Speaker 03: And so the outer limit will be the judge's discretion on whether or not the application properly identifies, on offense, [00:30:46] Speaker 03: for which evidence might be in a foreign country. [00:30:50] Speaker 03: And I think that that's an important point, too, because we didn't really talk very much yet about the standard review. [00:30:57] Speaker 03: To the extent that there's that second piece that the court needs to make a preponderance finding, that's a fact finding. [00:31:03] Speaker 03: And that needs to be reviewed by clear error. [00:31:06] Speaker 03: And the defense has come nowhere near showing that the district court committed clear error. [00:31:12] Speaker 03: I see that I'm out of time. [00:31:13] Speaker 03: If there are further questions, I'm happy to answer, [00:31:16] Speaker 02: Can you briefly address the rule of lenity if we find the word offense to be vague? [00:31:21] Speaker 02: Shouldn't we kind of tilt the scales in favor of the defendant under that rule? [00:31:26] Speaker 02: How does it apply here? [00:31:28] Speaker 03: Right. [00:31:28] Speaker 03: The rule of lenity argument, the government doesn't believe the term is vague or ambiguous. [00:31:34] Speaker 03: As I've said, either way that the court finds, even if the court found that offense means statutory violation, [00:31:41] Speaker 03: The government still met that burden because we essentially alleged every element of the offenses. [00:31:46] Speaker 03: And so it's not ambiguous. [00:31:48] Speaker 03: Either way the court finds, even if it did find that it meant statutory code reference, the government still wins. [00:31:55] Speaker 03: But also the purpose of the rule of lenity is very specific. [00:31:59] Speaker 03: The relevant reason you might apply it here is that the court should not resolve an ambiguity in a criminal statute so as to expand the scope. [00:32:08] Speaker 03: of a criminal statute beyond what the legislature clearly intended. [00:32:11] Speaker 03: That's from United States v. Working Jr. [00:32:16] Speaker 03: We're not expanding it beyond what the legislature intended. [00:32:19] Speaker 03: I'm applying the plain language of the rule, which follows all of the court's interpretation of it. [00:32:26] Speaker 03: And ultimately, Congress's intent here was to put reasonable guardrails on the government when it extends the statute of limitations. [00:32:35] Speaker 03: And the government fell within those guide rails by providing plenty of evidence in its declaration to support the tolling application. [00:32:44] Speaker 00: So you advocated for the test of whether the offense that's ultimately charged is intimately related to any offenses listed in the application. [00:32:59] Speaker 00: What's the basis of that test? [00:33:01] Speaker 00: I mean, that's not in the statute. [00:33:02] Speaker 00: So I know there's one district court decision that used that test, but we rely upon to say that's the test. [00:33:10] Speaker 03: Yeah, I don't know that this court needs to word the rule in the same way that Schwarzengruber did. [00:33:18] Speaker 03: But that rule is essentially a different distillation or repetition of the rule that the government is proposing, which is that the government must show and that the court must find that there's reason to believe evidence of an offense is in a foreign country. [00:33:32] Speaker 03: Now, if something's intimately related, one crime is intimately related to another, then by describing one offense, it should alert the foreign government of what kind of crime and what kind of evidence we're looking for. [00:33:46] Speaker 03: But that wording is just a different way of saying essentially the same thing that all of the courts have said. [00:33:53] Speaker 03: If there are no further questions, the government asks that the court affirm. [00:33:56] Speaker 00: Thank you. [00:33:56] Speaker 00: Thank you. [00:34:04] Speaker 01: Thank you for the two minutes, Your Honor. [00:34:06] Speaker 01: I appreciate it. [00:34:07] Speaker 01: I think my friend's definition of the offense is simply that an offense is a term that might broadly encompass multiple violations in an undifferentiated manner. [00:34:21] Speaker 01: But that's the definition that Judge Bumate rejected in Randall, that Miranda rejects, and that Getvey rejects. [00:34:28] Speaker 01: It has to be a discreet, enumerated offense with specificity and definiteness. [00:34:34] Speaker 01: And if there's any question about that, then repose. [00:34:37] Speaker 01: As Judge Lee mentioned, lenity or repose carries the day because a term that extends the statute of limitations under Supreme Court precedent has to be construed morally. [00:34:49] Speaker 01: Just three other points and I'll quickly end. [00:34:52] Speaker 01: Number one, I actually think it's clear that the government abandoned conspiracy in the application. [00:35:01] Speaker 01: Why do I say that? [00:35:02] Speaker 01: Because as Your Honor mentioned, 371 was in the MLAT. [00:35:06] Speaker 01: It's not in the application. [00:35:08] Speaker 01: In the application, they refer to the criminal transaction as a scheme in two places, ER 742 and 743. [00:35:18] Speaker 01: A scheme is distinct from a conspiracy. [00:35:23] Speaker 01: The other thing in the application that shows that the conspiracy is probably not being contemplated here is Lee decided to enter into a non-prosecution agreement, so did Kim. [00:35:35] Speaker 01: All that leaves is the defendant in this case, which fits the scheme, the word that they used. [00:35:44] Speaker 01: I think the final point I would make, Your Honor, is that there is a narrower basis upon which the court can reverse the district court. [00:35:54] Speaker 01: And that is by simply looking at the tolling application itself, putting the statute to the side. [00:35:59] Speaker 01: Because they chose, they had the pen, and they chose certain wording. [00:36:04] Speaker 01: And the wording they chose was they're seeking tolling for these five specific offenses. [00:36:10] Speaker 01: They drafted that in a way that manifested exhaustedness, using interrelated counts, charges. [00:36:20] Speaker 01: I'm sorry, Your Honor, I see my time has expired. [00:36:22] Speaker 01: May I finish my sentence? [00:36:24] Speaker 00: Of course. [00:36:24] Speaker 01: Thank you very much. [00:36:29] Speaker 01: The Scalia-Garner Treaty tells us that when there's a specific delineation of items, omissions 371 and 666 are taken as exclusions. [00:36:38] Speaker 01: That clear interpretive principle confirms a clear choice of language that the government used, not alone as a basis to reverse the district court. [00:36:46] Speaker 01: Thank you very much. [00:36:47] Speaker 00: Thank you. [00:36:48] Speaker 00: Council, thank you both for your arguments this morning. [00:36:51] Speaker 00: They were very helpful. [00:36:52] Speaker 00: And this case is submitted.