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United States v. Ripalda

United States District Court, S.D. Florida, Miami Division

June 28, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
FRANK CHATBURN RIPALDA, et al., Defendants.

          REPORT AND RECOMMENDATIONS ON DEFENDANT'S MOTION TO DISMISS COUNT 6 OF THE SUPERSEDING INDICTMENT

          Jonathan Goodman, Judge

         Defendant Frank Chatburn filed a motion to dismiss the money laundering count because he says the statute of limitations expired before he was indicted on the charge, and that this therefore prohibits the Government from prosecuting him on the charge. [ECF No. 1');">1');">1');">126]. U.S. District Judge Marcia G. Cooke referred the motion to the Undersigned. [ECF No. 1');">1');">1');">134]. The Government filed an opposition response [ECF No. 1');">1');">1');">141');">1');">1');">1] and Chatburn filed a reply [ECF No. 1');">1');">1');">148]. The Undersigned held a hearing on the motion on June 25, 201');">1');">1');">19. [ECF No. 1');">1');">1');">151');">1');">1');">1].

         The money laundering count (involving a $700, 000 wire transfer made from a Cayman Islands account to a U.S. bank account in Miami) was initially designated as Count 4 of the Indictment. [ECF No. 1');">1');">1');">1, p. 1');">1');">1');">10]. Chatburn's motion focused on that Count, but the grand jury had by then already returned a Superseding Indictment [ECF No. 1');">1');">1');">105, p. 1');">1');">1');">12] which shifted the $700, 000 money laundering allegation to Count 6. Therefore, Chatburn is actually seeking to dismiss Count 6 and his reply in support of his motion to dismiss unequivocally explains that he is in fact targeting Count 6. This procedural anomaly is not controversial in any way, and all parties recognize and accept the notion that Chatburn's motion seeks to dismiss Count 6 on statute of limitations grounds.

         The Undersigned respectfully recommends that Judge Cooke deny Chatburn's motion because another district court judge suspended the statute of limitations pursuant to an application the Government submitted under 1');">1');">1');">18 U.S.C. § 3292. As outlined below, the district court judge issued the tolling order after reviewing the government's ex parte application and a sworn declaration from an FBI agent which explained the pendency of an official request to the Republic of Panama for bank account and corporate records. The Undersigned rejects as not persuasive Chatburn's arguments that (1');">1');">1');">1) the records were not relevant to the money laundering offense, (2) the Government did not need the evidence because it already had evidence from the Cayman Islands, (3) the agent's declaration was overly conclusory, and (4) an evidentiary hearing is required.

         I. Factual Background

         On October 1');">1');">1');">13, 201');">1');">1');">17, the Government, through the Department of Justice's Office of International Affairs (“OIA”), submitted an official request to the Republic of Panama under the United Nations Convention Against Corruption (“UNCAC”), seeking bank account records and corporate records for companies the Defendant used as part of the bribery and money laundering schemes for which he is charged.

         On or about December 21');">1');">1');">1, 201');">1');">1');">17, the Government applied ex parte to the district court in the Southern District of Florida for a suspension of the statute of limitations pursuant to § 3292 based on its request to Panama. [See ECF No. 1');">1');">1');">133-1');">1');">1');">1 (filed under seal)]. This application included an FBI special agent's declaration about the matters under investigation and a copy of the Government's official request to Panama. Id.

         In the sworn declaration, the agent stated that the request to Panama was still pending and the Government had not yet received all of the requested evidence. [ECF No. 1');">1');">1');">133-1');">1');">1');">1, p. 1');">1');">1');">11');">1');">1');">1]. After reviewing the application package, the district court found by a preponderance of the evidence that it reasonably appeared that evidence of the offenses under investigation was located in Panama, and that the Government had made an official request to Panama. [ECF No. 1');">1');">1');">142-1');">1');">1');">1 (filed under seal)]. On the same day, the district court granted the Government's application and ordered “that the running of the statute of limitations for the offenses set forth in the government's Ex Parte Application is hereby SUSPENDED for the period authorized by 1');">1');">1');">18 U.S.C. § 3292.” [ECF No. 1');">1');">1');">142-1');">1');">1');">1, p. 4');">p. 4].

         The offenses referenced in the district court's order included the money laundering offenses charged in the indictments in this case, including Count 4 of the original indictment (i.e., Count 6 of the Superseding Indictment).

         On or about February 9, 201');">1');">1');">18, OIA received Panama's response to the Government's official request and OIA forwarded this response to the prosecution team on or about February 1');">1');">1');">12, 201');">1');">1');">18. [See ECF No. 1');">1');">1');">142-2 (filed under seal)].

         On or about April 1');">1');">1');">19, 201');">1');">1');">18, a grand jury sitting in Miami returned an indictment charging Chatburn with several crimes, including a substantive money laundering charge in connection with a transaction that occurred on or about February 27, 201');">1');">1');">13 (formerly Count 4 but now Count 6). [ECF No. 3]. On December 1');">1');">1');">13, 201');">1');">1');">18, a grand jury sitting in Miami returned a superseding indictment against Chatburn. [ECF No. 1');">1');">1');">105]. As noted above, the same money laundering charge that was Count 4 in the original indictment became Count 6 in the superseding indictment.

         II. Positions Urged by the Parties

         Noting that the wire transfer at issue was made on February 27, 201');">1');">1');">13, Chatburn points out that the applicable five-year statute of limitations[1');">1');">1');">1" name="FN1');">1');">1');">1" id= "FN1');">1');">1');">1">1');">1');">1');">1] expired on February 27, 201');">1');">1');">18, but that the indictment was not issued until April 1');">1');">1');">19, 201');">1');">1');">18, almost two months after the limitations period expired. He recognizes that the Government filed a motion on December 28, 201');">1');">1');">17 to suspend the statute of limitations under 1');">1');">1');">18 U.S.C. § 3292 but argues that the statute does not support tolling because the evidence relating to the money laundering count would presumably be in the United States or the Cayman Islands, not Panama. Therefore, he contends, a Government request for records from Panama is not relevant to a money laundering count involving a transfer from the Cayman Islands to the United States because it does not relate to the charged offense.

         At the time he filed the motion, Chatburn explained that he did not see any materials in the voluminous discovery showing that any documents were received at all from Panama after the United States filed its motion to suspend the statute of limitations. After receiving the Government's response (which pointed out that the documents had in fact been produced), Chatburn effectively abandoned that argument.

         However, he still argued that 1');">1');">1');">18 U.S.C. § 3292 cannot suspend the statute of limitations “if the government already has in its possession the documents requested” under the Mutual Legal Assistance Treaty (“MLAT”). [ECF No. 1');">1');">1');">126, p. 3');">p. 3');">p. 3');">p. 3]. He also challenges the agent's declaration because he contends that it “provides no details as to what remains to be received from Panama.” [ECF No. 1');">1');">1');">126, p. 4');">p. 4].

         And he still argues (in his reply) that “evidence pertaining to this wire transfer cannot reasonably appear to be in Panama.” [ECF No. 1');">1');">1');">148, p. 3');">p. 3');">p. 3');">p. 3]. Thus, he argues, an MLAT request to the Cayman Islands may have tolled the statute ...


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