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

t he limitations period Congress granted to allow pursuit of

evidence in foreign countries. This requires decision of what

constitut es “final action” within the meaning of the suspension

provision in 18 U.S.C. § 3292(b).2

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 gold SS the “Samuhel Gospels,” and the

“Evangelistar aus St. Wiperti,” a sixteenth century prayer

book SS the “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

a rtifacts from the church treasury in Quedlinburg, Germany on or3

about April 19, 1945, when he was stationed there. On Joe Meador’s

death, his brother, Jack Mann ing 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 t he 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 c landestine

enterprise. Torigian hired an expert in medieval manuscripts,

Jacq ues 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 manuscri pts. Heribert Tenschert, a

Bavarian book dealer in Passau, Germa ny expressed an interest in

the manus cripts. 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.4

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 accou nt 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, o n March 2, 1995, the

Government made an official request to the Ministry of Justice of

the Federal Republic of Germany for certain evidence l ocated in

Germany pertinent to the inv estigation 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

r equests that a judge or magistrate conduct th e proceedings. With respect to all other witnesses, police

interviews will be sufficient. The prosecutor also seeks5 to view and photograph or copy do cuments and other

evidence presently in the possess ion 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

ag reement by The Cultural Foundation of the States to

purchase the Samuhel Gospels....

On Marc h 3, 1995, the Government, based upon this official

req uest, filed an e x 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 t he 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: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 I have the honor of transmitting to you the following items in

satisfaction of the above request which have turned up in

Bavaria....

Accordin g 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 AU SA 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 obtain ing 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 tha t the documents which Dr. Maurice had agreed to

produce du ring the police interview had not been received and

requested that the docum ents be supplied “as soon as possible.”7

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

holid ay. 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 tha t 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 the8

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 letter SS stating that the requ est had been

“completely satisf i ed” and the German official's function was

“concluded” SS

was the “fin al 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, 1996 SS one day before the indictment was

returned.

On October 22, 1996, the District Court dismissed all counts

of the indictment against the defendants, concluding they w ere

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, 19 97 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 and2 Meador and Cook originally cross-appealed the district

court’s r efusal 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 documents obtained from Dr. Maurice were indeed in response to the

United States’ original request sent on March 2, 1995.

The Janu ary 2, 1997 letter from the German Ministry, an

Addendum to the Government’s Appe al 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, al ternatively, 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 la w that are subject to d e novo

review, while the defendants claim that the findings are factual,

reviewable only for clear error.10

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 involv es discerning a legal standard for “final action”

from the statute, it is a question of law. S ee 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

. S ee,

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 author ity 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 plac e, 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 the11

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 date s are January 31, 1996, when Dr. Klaus

Maurice sent addi tional 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 gove rnment 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

assistan ce has been produced, regardless of the foreign

government’s determination that it has completed its response to

the official request for evidence.

We begin o ur analysis with the statute. 18 U.S.C. § 3292

states:

§ 3292. S uspension 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 off ense if the court finds by a

p reponderance 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.12 (b) Excep t 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 al l periods of suspension under

this section with respect to an offense SS

(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 e xpire 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 oth er 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] reques t.” 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 deadli nes when evidence located in foreign

cou ntries 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. S ee 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).13

The Ninth Circuit decision in U nited States v. Bische l , 61

F.3d 1429 (9th Cir. 1995), is the only case that has interpreted

the term “final action” in § 3292(b). In B ischel

, 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. I d

. 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 requested SS including turning

over the records and certifying their authenticity, as requested by

the U.S. government. I d

. 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. I d

. The Ninth Circuit noted that “there is no ready way

of knowing when the last of anything has happened.” I d

. 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. I d

. at 1433-34 (noting that “pegging ‘final action’ to

dispositio n, up or down, of each of the items in the official

request provides a more certain benchmark by whic h 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),14

must turn on whether a dispositive response to an official request

for evidence from our government has been obtained. Certainly, a

r esponse 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 th e 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 fin al, 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 to3 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 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 offici al 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 sta tute will not frustrate Congressional

purpose by hampering the government in obtaining evidence from

foreign countries. If dissatisfied with a dispositive response

from a foreign au thority, the prosecutor need only file another

request and seek a fu rther suspension of the limitations period,

subject to the ultimate thre e-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. B ischel rejected the argument the

government is making here that “final action” takes place only when

the last of the records requested have been received. S ee Bischel

,16

61 F.3d at 1434. Indeed, B ischel 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 eve ry 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 infor mation 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. C f

. Bischel

,17

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 wh ether 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

h ad “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, 1995.18 C.

Our preference for a strict, bright-line standard for “final

action” is a p roduct of the general rule of strict adherence to

statutes of limitation. S ee, 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 ad ministering 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 spec ifying 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.’” T oussie 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 dep rives 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 cri minal activity.” M arion

, 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 the19

limitations period, pending completion of an investigation,

whenever evid ence is located in a foreign land. It is not a

s tatutory 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.

ENDRECORD20

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

b oth uncertain and detrimental to the government’s legitimate

prosecutorial interests in an increasingly globalized community.

I therefore respectfully dissent.

First, I am not as concer ned as the majority about

attempting to fashion a “bright-line rule” for “final action” under

this statutory extension of the statute of li mitations. The

majority say they do not want to promote prosecutorial footdragging. 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

respo nses 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.4 The majority sets up a stra w man in arguing that the

government advocates judicial deference to the government’s

interpret ation 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

Second, the “bright-lin e” 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

evide nce makes American law dependent on the customs and

bureaucra tic language of foreign cultures rather than on a sound

application of American policy. 4 The meaninglessness of this

“bright line” is obvio us 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-layere d 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 thre e-year limit --

protect the timeliness of the indictment. So viewed, the “final22

action” occurred either in January 1996 or in March of that year,

when t he last documents responsive to the American request were

transmitted.

I t should be noted here that the Bischel opin ion,

mentioning dispositive action by the foreign government, supports

the majority’s position in form but not in substance. In B ischel

,

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 ful l request. B ischel 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 o f the tolling provision, will encourage the

government to enlarge its foreign evidence request as much as23

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 o n either the

date on w hich that letter was sent or on the date upon

which the letter was received. A determination of which

event reinstitutes the limitation period could

potential ly 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 require d 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 authorit ies. 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 unnecessary24

complications for law enforcement and, in my view, undermines the

intent of Congress.

I respectfully dissent.