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Article: Discovery Challenges in International Criminal Investigations

Business Litigation Reports

The U.S. Department of Justice (“DOJ”) regularly builds cases by working with counterparts worldwide to conduct joint investigations. In the press releases for the blockbuster FIFA and Alstom actions, for example, DOJ acknowledged cooperation with investigative partners from Switzerland, Indonesia, the United Kingdom, Germany, Italy, Singapore, Saudi Arabia, Cyprus and Taiwan. (See Press Release, U.S. Dep’t of Justice, Nine FIFA Officials and Five Corporate Executives Indicted for Racketeering Conspiracy and Corruption (May 27, 2015); see also Press Release, U.S. Dep’t of Justice, Alstom Pleads Guilty and Agrees to Pay $772 Million Criminal Penalty to Resolve Foreign Bribery Charges (Dec. 22, 2014).) Consequently, targets of DOJ’s transnational investigations must confront the question of how to access material evidence against them that is held in the custody of DOJ’s foreign partners.

Obstacles to Collection of Foreign Evidence
Unfortunately for defendants facing U.S. trials that are built on evidence from transnational investigations, mainstay tools for domestic discovery lose much of their power at the U.S. national border. Cases built through transnational law enforcement cooperation bring into particularly sharp relief the limitations on defendants’ access to evidence under Federal Rule of Criminal Procedure 16 and the Brady/Giglio line of authority.

Disclosure obligations under Rule 16, for example, do not extend to evidence outside the U.S. Government’s “possession, custody, or control.” See Fed. R. Crim. P. 16(E). Similarly, Brady and Giglio only entitle defendants to production of evidence “actually or constructively in [the Government’s] possession or accessible to it.” United States v. Perdomo, 929 F.2d 967, 970 (3d Cir. 2013). This amounts to a high bar, and defendants rarely succeed when arguing that DOJ constructively possesses evidence held in the files of foreign authorities. See, e.g., United States v. Reyeros, 537 F.3d 270, 279-80, 283 (3d Cir. 2008) (holding that the U.S. Government did not have constructive possession of Colombian interview records relating to a prosecution witness extradited by Colombian authorities where extradition proceedings did not involve a joint investigation).

In practice, defendants seeking disclosure of evidence gathered by other nations’ law enforcement agencies during cooperative investigations may find that DOJ has avoided taking actual possession of such material and disclaimed constructive possession. In the recent Sigelman case, for example, the Government maintained it did not have custody of, and thus was not responsible for producing, certain materials Colombian prosecutors had openly referenced in related Colombian criminal cases. Yet a senior Colombian official publicly touted the “very fluid communication and judicial cooperation” between the U.S. and Colombian investigations and stated, “we are going to give our information, our investigative results to the prosecutors of the U.S. so that they can take it to the U.S. and so that they can use it. . . .” (Radio interview of Mario Montes, RCN Radio (March 13, 2015) (translated from Spanish language audio).)

Holding Prosecutors to a Good Faith Duty to Seek and Disclose Evidence
Of course, defendants must be vigilant for any sign that a prosecution built upon a transnational investigation has turned into “an opportunity for evading constitutional requirements applicable to United States officials.” United States v. Paternina-Vergara, 749 F.2d 993, 998 (2d Cir. 1984).

Defendants should therefore take note of a small body of federal appellate authority signaling U.S. prosecutors’ duty to seek in good faith and disclose evidence held by joint investigation partners. See, e.g., Reyeros, 537 F.3d at 285 n.20 (3d Cir. 2008) (noting United States v. Paternina-Vergara, 749 F.2d 993, 998 (2d Cir. 1984) as authority for the proposition that DOJ may be obligated “to attempt to obtain and produce” otherwise-discoverable material “in the actual possession of another sovereign when the two governments have engaged in a joint investigation”); see also Paternina-Vergara, 749 F.2d at 998 (2d Cir. 1984) (stating that prosecutors must make good faith effort “to obtain the statements of prosecution witnesses held by foreign governments”).

Paternina-Vergara provides insight into the scope of prosecutors’ duty of good faith. There, when Canadian authorities refused to send evidence generated in a joint U.S.-Canadian investigation outside of Canada, an Assistant U.S. Attorney (“AUSA”) fulfilled the duty of good faith by traveling to Canada to prepare copies or summaries of the documents for the defense. Id. at 996, 998. Where prosecutors in future cases fail to display a similar level of diligence in seeking and disclosing evidence after joint investigations, Paternina-Vergara may prove a useful guidepost for defendants asserting discovery violations.

Multinational/International Legal Tools
U.S. defendants seeking evidence overseas will note two core mechanisms for foreign discovery: Mutual Legal Assistance Treaties (“MLATs”) and letters rogatory. While a defendant cannot force the Government to initiate the MLAT process on his behalf, defendants should keep in mind the Government’s power to use MLAT requests if and when the parties agree on the necessity of specific discovery.

Defendants can also petition the Court for the issuance of letters rogatory. Letters rogatory represent formal requests for judicial assistance made by a court in one country to a court in another nation. The power to issue letters rogatory for overseas discovery falls within a U.S. district court’s authority in both civil and criminal cases, but the decision of whether to issue letters rogatory is left to “a district court’s sound discretion.” United States v. Jefferson, 594 F. Supp. 2d 655, 675 (E.D.V.A. 2009).

Because the specific requests made through letters rogatory will be carried out, if at all, under the judicial procedures of the requested nation (i.e., not under U.S. judicial procedures), defendants should expect lengthy waits. The Federal Judicial Center’s guidebook on the subject cautions judges “[t]he letter rogatory process may take as long as a year . . . [and] even in urgent cases . . . often take[s] at least a month to execute.” (T. Markus Funk, Mutual Legal Assistance Treaties and Letters Rogatory: A Guide for Judges 20 (2014).)

Conclusion
The evidentiary playing field doubtless tilts against defendants in cases where critical evidence is abroad, particularly given the slow and uncertain nature of MLAT requests or letters rogatory. In future cases proceeding to trial after joint investigations, however, defendants’ creative and persistent monitoring of prosecutors’ duty to seek and produce foreign evidence in good faith may push DOJ towards greater transparency.