The Globalization of Investigations

The U.S. has negotiated and entered into MLATs with over 50 countries. These are bilateral treaties, ratified by Congress, and apply to criminal cases and investigations. Among other things, MLATs provide a generalized framework for a law enforcement agency in one country to perform various pre-indictment investigative steps in aid of another country's criminal proceeding. Such steps may include the search and seizure of physical evidence, taking testimony from witnesses and targets, serving documents, and identifying assets to freeze or forfeit. See Justin A. Thornton, New Agreements with Europe, Bus. Crimes Bull., Oct. 2005, at 3.

There is no 'standard' template for an MLAT. However, many share similar features, and the government is trying to standardize such agreements. In September 2006, President Bush presented to the Senate for ratification a new MLAT (and extradition treaty) between the U.S. and the member states of the European Union. This new MLAT will act as a supplement to existing bilateral MLATs between the U.S. and the EU members.

Given the variation among MLATs, counsel must take care to review the text of the particular treaty at issue, as well as any associated legislative history from the Senate or corresponding foreign body.

DOJ prepares technical analyses of treaties before they are submitted to the Senate for ratification. Although DOJ certainly has incentives to author these analyses with a pro-law enforcement tilt, a technical analysis can still be a significant source of guidance when litigating treaty issues.

Building the Team

The parties to an MLAT typically designate a 'central authority' in each country for the receipt and processing of MLAT requests. For foreign authorities seeking to gather evidence in the U.S., DOJ is the central authority, working through main Justice's Office of International Affairs (OIA). The requesting authority screens and forwards requests from its own local, state or national law enforcement entities, and the receiving authority has the ability to delegate execution of the request to one of its offices. In the U.S., it is typical for OIA to ask the local U.S. Attorney's office to carry out the MLAT request. Thus, an MLAT request may involve four different law enforcement offices. The defense team must include lawyers who are positioned to engage with local and national authorities on both the requesting and receiving ends of an MLAT request. Even if the local office is 'only' carrying out the request of the central authority, the manner in which a request is executed can be of significant importance, and the local office may have some discretion in how it executes a request.

Challenging a Request

The central authority at the receiving end of an MLAT request may be very reluctant to exercise any discretion it may have to limit or reject a request. Cross-border cooperation has its roots in the fight against narcotics, organized crime and, most recently, terrorism. Established procedures and attitudes are built on the premise that the targets of such investigations should receive as little due process as is permissible. Perhaps more importantly, the bureaucracy supporting a central authority has a very strong incentive to fulfill MLAT requests so that, when it sends requests in the other direction, it will receive similar accommodation. Nevertheless, asking the central authority to reject an MLAT request is a strategy worth pursuing. Common grounds for such an effort are that the request did not conform to the MLAT's requirements, or the offense under investigation is not a crime ' or perhaps even a constitutionally protected activity ' in the receiving state.

If efforts to persuade the central authority to reject a request fail, the target of a request may challenge in court the receiving government's execution of the request. The receiving government may strongly resist such a challenge, arguing that the execution of a request is a matter of foreign relations or administrative discretion with which the courts should not interfere. However, regardless of whether the motivation for a search, seizure or custodial interrogation is foreign or domestic, it is still an exercise of government power limited by the Constitution and other applicable laws.

Our experience has been that DOJ urges courts to treat the execution of MLAT requests as a routine matter, subject to little or no review. However, judicial scrutiny of government action taken pursuant to an MLAT should be greater than
for execution of domestic process, not less. Domestic law enforcement agencies are subject to internal controls with which the reviewing court is familiar and may be able to rely on in giving deference to the agency's decision to investigate. Foreign law enforcement agencies may lack similar controls. The requests may originate from countries without effective democratic political controls, ethical officials, or an American-style heritage of the rule of law.

Challenges to an MLAT request start with text of the treaty, but can also be based on constitutional grounds. Did the request comply with all procedural requirements under the MLAT? See In re Subpoena Issued to Mary Erato, 2 F.3d 11, 17 (2d Cir. 1993) (under U.S.-Netherlands MLAT, witness 'cannot be compelled to testify under an unauthorized request'). Does the MLAT require that the underlying conduct constitute a crime in both countries and, if so, is the conduct described in the request criminal in the receiving state? Does the treaty authorize the particular assistance sought? See In re Request from L. Kasper-Ansermet, 132 F.R.D. 622 (1990) (forbidding DOJ from assisting a Swiss magistrate in initiation of a Swiss criminal case by 'pronouncing indictment' in the U.S.).

Unfortunately, the government may carry out certain MLAT requests without seeking judicial approval or, if judicial approval is required, may seek that approval ex parte. As a practical matter, this may prevent counsel from challenging a request until after it is too late.

A relatively standard MLAT provision allows the requesting state to ask the receiving state to treat a request with confidence. DOJ has a policy of trying to honor those requests and will routinely seek any required judicial approval ex parte. Defense counsel need not accept this practice, as the strict requirements for proceeding ex parte are not met in the case of every MLAT request. For example, First Circuit case law limits the use of ex parte procedures to extraordinary situations and places the burden on the government of convincing the district court that it can meet the standards for proceeding ex parte. Depending on the facts of the request, defendants sometimes can successfully challenge the ex parte procedure and persuade a court to grant the respondent access to the MLAT pleadings. This sometimes exposes hidden defects in the request thatwould not be brought to the court's attention in an ex parte proceeding.

One common application DOJ may make in response to an MLAT request from foreign prosecutors is an application under 28 U.S.C. ' 1782 for a 'commission' to take testimony from a witness or defendant residing in the United States. Once a commission is granted, usually to an Assistant U.S. Attorney, that AUSA can then issue a subpoena for the witness's testimony. This subpoena, like any other, can be challenged through a motion to quash. However, it is an unsettled question what standard a court should apply in deciding such a motion. The court may even have the authority to establish the standard when issuing the commission by using its authority under the statute to 'prescribe the practice and procedure' for taking the testimony.

Conclusion

U.S. case law discussing MLATs is somewhat sparse. As other governments increasingly make use of the MLAT as a tool to investigate and prosecute U.S. persons and companies, the number of challenges and reported decisions probably will grow. Until the law matures, defense counsel can expect significant variations across the country. A challenge to an MLAT request that fails in one venue may succeed in another. Accordingly, defense counsel should not treat an MLAT request as an unstoppable train run by the U.S. and foreign bureaucracies but rather as an opportunity to make new law protecting their clients' rights. These efforts will face significant obstacles as the defense bar works to overcome the instincts of many prosecutors and judges to preserve 'international comity' in exercising discretion over foreign sovereigns' requests.

Benjamin Goldberger is an associate at McDermott Will & Emery LLP in Boston, where Michael Kendall ([email protected]), a member of this newsletter's Board of Editors, is a partner. Their practices include both white-collar criminal defense and complex civil litigation.

Over the past several years, the Department of Justice ('DOJ') has expanded its tools and efforts to gather evidence from abroad and reciprocate by helping foreign prosecutors gather evidence in the United States. For a client whose primary presence is in this country, cross-border cooperation among law enforcement organizations raises distinct and difficult issues. An effective defense requires knowledge of treaties and criminal law in two or more jurisdictions, and collaboration among defense counsel in different countries.

Although some law enforcement agencies cooperate with each other on an informal basis, more significant are agreements between or among countries. Some agreements take the form of memoranda of understanding, reflecting a bilateral agreement between the U.S. executive branch and a foreign sovereign. Others are treaties that are the 'law of the land' on equal footing with Acts of Congress. U.S. Const., art. VI. In addition to extradition treaties, law enforcement agencies cooperate pursuant to tax treaties, customs treaties and, most importantly, mutual legal assistance treaties ('MLATs').

How MLATs Work

The U.S. has negotiated and entered into MLATs with over 50 countries. These are bilateral treaties, ratified by Congress, and apply to criminal cases and investigations. Among other things, MLATs provide a generalized framework for a law enforcement agency in one country to perform various pre-indictment investigative steps in aid of another country's criminal proceeding. Such steps may include the search and seizure of physical evidence, taking testimony from witnesses and targets, serving documents, and identifying assets to freeze or forfeit. See Justin A. Thornton, New Agreements with Europe, Bus. Crimes Bull., Oct. 2005, at 3.

There is no 'standard' template for an MLAT. However, many share similar features, and the government is trying to standardize such agreements. In September 2006, President Bush presented to the Senate for ratification a new MLAT (and extradition treaty) between the U.S. and the member states of the European Union. This new MLAT will act as a supplement to existing bilateral MLATs between the U.S. and the EU members.

Given the variation among MLATs, counsel must take care to review the text of the particular treaty at issue, as well as any associated legislative history from the Senate or corresponding foreign body.

DOJ prepares technical analyses of treaties before they are submitted to the Senate for ratification. Although DOJ certainly has incentives to author these analyses with a pro-law enforcement tilt, a technical analysis can still be a significant source of guidance when litigating treaty issues.

Building the Team

The parties to an MLAT typically designate a 'central authority' in each country for the receipt and processing of MLAT requests. For foreign authorities seeking to gather evidence in the U.S., DOJ is the central authority, working through main Justice's Office of International Affairs (OIA). The requesting authority screens and forwards requests from its own local, state or national law enforcement entities, and the receiving authority has the ability to delegate execution of the request to one of its offices. In the U.S., it is typical for OIA to ask the local U.S. Attorney's office to carry out the MLAT request. Thus, an MLAT request may involve four different law enforcement offices. The defense team must include lawyers who are positioned to engage with local and national authorities on both the requesting and receiving ends of an MLAT request. Even if the local office is 'only' carrying out the request of the central authority, the manner in which a request is executed can be of significant importance, and the local office may have some discretion in how it executes a request.

Challenging a Request

The central authority at the receiving end of an MLAT request may be very reluctant to exercise any discretion it may have to limit or reject a request. Cross-border cooperation has its roots in the fight against narcotics, organized crime and, most recently, terrorism. Established procedures and attitudes are built on the premise that the targets of such investigations should receive as little due process as is permissible. Perhaps more importantly, the bureaucracy supporting a central authority has a very strong incentive to fulfill MLAT requests so that, when it sends requests in the other direction, it will receive similar accommodation. Nevertheless, asking the central authority to reject an MLAT request is a strategy worth pursuing. Common grounds for such an effort are that the request did not conform to the MLAT's requirements, or the offense under investigation is not a crime ' or perhaps even a constitutionally protected activity ' in the receiving state.

If efforts to persuade the central authority to reject a request fail, the target of a request may challenge in court the receiving government's execution of the request. The receiving government may strongly resist such a challenge, arguing that the execution of a request is a matter of foreign relations or administrative discretion with which the courts should not interfere. However, regardless of whether the motivation for a search, seizure or custodial interrogation is foreign or domestic, it is still an exercise of government power limited by the Constitution and other applicable laws.

Our experience has been that DOJ urges courts to treat the execution of MLAT requests as a routine matter, subject to little or no review. However, judicial scrutiny of government action taken pursuant to an MLAT should be greater than
for execution of domestic process, not less. Domestic law enforcement agencies are subject to internal controls with which the reviewing court is familiar and may be able to rely on in giving deference to the agency's decision to investigate. Foreign law enforcement agencies may lack similar controls. The requests may originate from countries without effective democratic political controls, ethical officials, or an American-style heritage of the rule of law.

Challenges to an MLAT request start with text of the treaty, but can also be based on constitutional grounds. Did the request comply with all procedural requirements under the MLAT? See In re Subpoena Issued to Mary Erato, 2 F.3d 11, 17 (2d Cir. 1993) (under U.S.-Netherlands MLAT, witness 'cannot be compelled to testify under an unauthorized request'). Does the MLAT require that the underlying conduct constitute a crime in both countries and, if so, is the conduct described in the request criminal in the receiving state? Does the treaty authorize the particular assistance sought? See In re Request from L. Kasper-Ansermet, 132 F.R.D. 622 (1990) (forbidding DOJ from assisting a Swiss magistrate in initiation of a Swiss criminal case by 'pronouncing indictment' in the U.S.).

Unfortunately, the government may carry out certain MLAT requests without seeking judicial approval or, if judicial approval is required, may seek that approval ex parte. As a practical matter, this may prevent counsel from challenging a request until after it is too late.

A relatively standard MLAT provision allows the requesting state to ask the receiving state to treat a request with confidence. DOJ has a policy of trying to honor those requests and will routinely seek any required judicial approval ex parte. Defense counsel need not accept this practice, as the strict requirements for proceeding ex parte are not met in the case of every MLAT request. For example, First Circuit case law limits the use of ex parte procedures to extraordinary situations and places the burden on the government of convincing the district court that it can meet the standards for proceeding ex parte. Depending on the facts of the request, defendants sometimes can successfully challenge the ex parte procedure and persuade a court to grant the respondent access to the MLAT pleadings. This sometimes exposes hidden defects in the request thatwould not be brought to the court's attention in an ex parte proceeding.

One common application DOJ may make in response to an MLAT request from foreign prosecutors is an application under 28 U.S.C. ' 1782 for a 'commission' to take testimony from a witness or defendant residing in the United States. Once a commission is granted, usually to an Assistant U.S. Attorney, that AUSA can then issue a subpoena for the witness's testimony. This subpoena, like any other, can be challenged through a motion to quash. However, it is an unsettled question what standard a court should apply in deciding such a motion. The court may even have the authority to establish the standard when issuing the commission by using its authority under the statute to 'prescribe the practice and procedure' for taking the testimony.

Conclusion

U.S. case law discussing MLATs is somewhat sparse. As other governments increasingly make use of the MLAT as a tool to investigate and prosecute U.S. persons and companies, the number of challenges and reported decisions probably will grow. Until the law matures, defense counsel can expect significant variations across the country. A challenge to an MLAT request that fails in one venue may succeed in another. Accordingly, defense counsel should not treat an MLAT request as an unstoppable train run by the U.S. and foreign bureaucracies but rather as an opportunity to make new law protecting their clients' rights. These efforts will face significant obstacles as the defense bar works to overcome the instincts of many prosecutors and judges to preserve 'international comity' in exercising discretion over foreign sovereigns' requests.

Benjamin Goldberger is an associate at McDermott Will & Emery LLP in Boston, where Michael Kendall ([email protected]), a member of this newsletter's Board of Editors, is a partner. Their practices include both white-collar criminal defense and complex civil litigation.