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United States v. Thiam

United States District Court, S.D. New York

April 4, 2017

UNITED STATES OF AMERICA,
v.
MAHMOUD THIAM, Defendant.

          Elisha Kobre Christopher J. DiMase Assistant United States Attorneys Joon H. Kim Acting United States Attorney Lorinda Laryea Trial Attorney Andrew Weissman Chief, Criminal Division, Fraud Section United States Department of Justice

          For the defendant:Aaron M. Goldsmith Law Office of Aaron M. Goldsmith, P.C.

          OPINION AND ORDER

          DENISE COTE, United States District Judge.

         Mahmoud Thiam (“Thiam”) is charged in a two count Indictment. Count One alleges that he received bribes as a Minister of Mines for the Republic of Guinea and engaged in wire transfers of the proceeds of those bribes from Hong Kong to New York in violation of 18 U.S.C. §§ 1957 & 1952. Count Two alleges that he laundered the bribe proceeds from Hong Kong to Malaysia, to Mozambique, and then into New York in violation of 18 U.S.C. § 1956. Thiam moves to dismiss the Indictment as barred by the statute of limitations because the Government's applications to suspend the statute of limitations pursuant to 18 U.S.C. § 3292 were deficient. For the following reasons, the motion is denied.

         Background

         The Government made two ex parte applications to judges of the Southern District of New York pursuant to § 3292 to suspend the statute of limitations during its grand jury investigation of Thiam and others. Its first application, accompanied by a declaration from Federal Bureau of Investigation Agent Christopher Martinez (the “Agent”) dated October 31, 2014, represents that official requests for evidence had been made to ten listed countries (the “Recipient Countries”) between March 20, 2013 and August 15, 2014, describes the evidence sought from those countries and its relevance to the investigation, and explains Thiam's role in the crimes being investigated. A November 25, 2014 Order granted the suspension application finding that “[i]t reasonably appears, based on a preponderance of evidence presented to the Court, that evidence of the offenses under investigation is located in” the Recipient Countries.

         The second application was accompanied by a declaration of the Agent dated January 3, 2016. The declaration listed three additional requests to three Recipient Countries between August 7, 2015 and November 13, 2015. A February 11, 2016 Order granted the suspension application. It noted the November 25, 2014 Order, and again found that “[i]t reasonably appears, based on a preponderance of the evidence presented to the Court, that evidence of the offenses under investigation is located in” the Recipient Countries.

         The Government received responses to its requests beginning in 2013. The last response was received from Hong Kong on February 24, 2017. There was an official request for evidence pending continuously for all but two days from the time of the first request until February 24, 2017.

         On January 18, 2017, a grand jury sitting in the Southern District of New York returned a two count Indictment charging Thiam with violating laws which have a statute of limitations of five years. The two counts allege that the conduct occurred “up to and including at least in or about August 2011” and “[i]n or about November 2010.” At a conference on February 13, Thiam requested a speedy trial and did not object to a trial beginning on April 24, 2017. On March 24, Thiam filed a motion to dismiss the Indictment, arguing that it was returned outside the statute of limitations. When measured from November 2010, the Indictment was returned approximately fourteen months beyond the five year statue of limitations.

         Discussion

         Section 3282 provides that the Government has five years to bring an Indictment for noncapital crimes, including the crimes charged in the Indictment. 18 U.S.C. § 3282. Section 3292 provides for up to a three year suspension of the statute of limitations during the pendency of requests for evidence from a foreign country, extending the statute of limitations to a maximum of eight years. Section 3292 reads in pertinent part as follows:

(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 offense if the court finds by a preponderance of the evidence that an official request has been made for such evidence and that it reasonably appears, or reasonably appeared at the time the request was made, that such evidence is, or was, in such foreign country. . . .
(b) Except 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 ...

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