There is no express statute of limitations provision in the text of the FCPA. As a result, the general five-year statute of limitations for federal criminal offenses applies. 6 DOJ must bring FCPA charges within that period or risk that the charges will be dismissed as time-barred.
The statute of limitations for a particular crime typically begins to run when the offense has been “completed” (i.e., when the elements comprising the offense have all occurred). 7 Courts distinguish between crimes that are complete when they are committed, and crimes that are subject to the continuing offense doctrine, meaning that the statute of limitations does not necessarily begin to run at the time of the underlying substantive conduct because the crime itself is continuing in nature. An example of a continuing offense (that, as discussed below, often comes into play in FCPA cases) is conspiracy, which continues “as long as the conspirators engage in overt acts in furtherance of their plot.” 8
Since the overwhelming majority of FCPA cases (and virtually all of those against companies) are settled without a trial, few cases interpret the FCPA, and none has provided a detailed analysis of how the standard federal statute of limitations period operates in the FCPA context. Nor has any court ruled definitively on whether bribing a government official should be treated as a completed or a continuing offense. However, the U.S. Supreme Court has cautioned that “the doctrine of continuing offenses should be applied in only limited circumstances,” 9 and nothing in the text of the statute suggests that Congress intended to make violating the FCPA a continuing offense. Further, the very nature of an FCPA offense indicates that it is not a continuing offense. The elements of the crime are met when a corrupt payment is offered or made or a false entry is intentionally recorded in a U.S. issuer's books. Thus, it is likely that courts will treat a substantive violation of the FCPA itself as a completed offense act.
The closest any court has come to addressing when the statute of limitations begins to run in a typical FCPA case isUnited States v. Kozeny, 493 F. Supp. 2d 693, 706 (S.D.N.Y. 2007) aff'd 541 F.3d 166 (2d Cir. 2008). In Kozeny, the defendants were charged with making corrupt payments between 1997 and 1999 to senior officials in the Azerbaijan government to secure control of that country's state-owned oil company. 10 Two of the defendants moved to have a number of counts in the May 2005 indictment dismissed as barred by the statute of limitations. 11
The court noted that the conduct that formed the basis for the indictment's FCPA charges occurred between March and July 1998, and therefore the statute of limitations would have run between March and July 2003. Unless DOJ could demonstrate that the statute of limitations was somehow tolled, the substantive FCPA violations would have to be dismissed. 12 The court ultimately dismissed the substantive FCPA counts (save for one count where the statute was properly tolled) because the limitations period had run. 13 Nothing in the ruling indicates that FCPA violations should be considered a continuing offense and DOJ did not even attempt to make that argumen
