In United States v. So, --- F.4th ---, No. 24-5085 (9th Cir. 2026), a divided Court affirmed Hyoung Nam “Brian” So’s conviction on one count of conspiracy to commit federal funds bribery, in violation of 18 U.S.C. § 371. The majority held that the district court did not err in denying So’s motion to dismiss the indictment as untimely.
The offense of conspiracy has a five-year statute of limitations. See 18 U.S.C. §§ 371, 3282(a). The limitations period for conspiracy “starts to run on the date of the last overt act alleged” in the indictment.Tolling under § 3292 does not take effect in the absence of an order from “the district court before which a grand jury is impaneled to investigate the offense” that makes two findings pertaining to the offense: (1) that an “official request” has been made to a foreign governmental authority for “evidence of [the] offense,” and (2) “that it reasonably appears, or reasonably appeared at the time the request was made, that such evidence is, or was, in such foreign country.” If those findings are made, then the district court “shall suspend the running of the statute of limitations for the offense.”We hold that tolling under § 3292 applies to every offense—that is, a course of conduct in violation of a particular statutory prohibition—that is covered by the district court’s tolling order and for which the required statutory findings have been made. Although the tolling order must identify which offenses are tolled, it need not do so by citation to the relevant statutory prohibition. Whether a particular offense is embraced by the tolling order is a question of construction. And similar to how we construe an indictment, we determine the identity of the offenses covered by a tolling order based on their substance, not their label.Although the tolling order here did not list by name or citation the charged offense of conspiracy to commit federal funds bribery, it is clear from context that this offense was covered by the tolling order. The district court ordered that the statute of limitations be suspended “for the offenses set forth in the government’s ex parte application.” And in providing detail on those offenses, the government’s application described conduct that embraced not only the essential facts of So’s conspiracy charge, but also other key facts alleged in the indictment. The offense charged is thus substantively the same as one of the offenses for which tolling was sought and ordered. The failure to identify this offense by the correct statutory citation was merely an “error, defect, irregularity, or variance that does not affect substantial rights.” Fed. R. Crim. P. 52(a).
However, as Judge Lee's dissent points out:
The problem here is that the federal government in its ex parte application never specified “the offense”—conspiracy to commit offense or to defraud United States under 18 U.S.C. § 371—that became the basis of the guilty verdict. Instead, the government listed five other offenses that were never charged. Based on the government’s application, the district court tolled the statute of limitations for those five offenses only—but not the actual offense that defendant Brian So committed.We must apply the law as written by Congress: Section 3292 requires the government to specify “the offense” for which it wants the statute of limitations tolled. While I agree with the majority that Section 3292 does not require a specific U.S. Code citation, the government must provide sufficient information for the court to understand which offense is at issue. Nothing in the government’s application or the court order suggests that “the offense” being tolled was the conspiracy to defraud the United States. I reluctantly believe that So’s conviction must be overturned. I respectfully dissent.
