The Globalization of Investigations

The United States has entered MLATs with over 50 countries. These Congressionally ratified bilateral treaties apply to criminal cases and investigations. MLATs provide a generalized framework for law-enforcement agencies in one country to perform various pre-indictment investigative steps to help another country's criminal proceedings. Steps might include:

• Searching for and seizing evidence;
• Taking testimony;
• Serving documents; and
• Identifying assets to freeze or forfeit. (See, Justin A. Thornton, New Agreements with Europe, Business Crimes Bulletin, Oct. 2005, at 3.)

An MLAT has no standard template but many share features, and the government is trying to make the agreements standard. In September 2006, President Bush gave the Senate for ratification a new MLAT (and extradition treaty) between the United States and the European Union. This new MLAT will supplement existing bilateral U.S.-EU MLATs.

Given MLATs' variations, counsel must review particular treaty text, and associated legislative history from the Senate or corresponding foreign body.

DOJ prepares technical analyses of treaties before the Senate considers ratification. Although DOJ certainly has incentives to author these analyses with a pro-law enforcement tilt, a technical analysis can guide litigating treaty issues.

Building the Team

MLAT parties typically designate a 'central authority' in each country to receive and process MLAT requests. Foreign authorities seeking evidence in the United States deal with the DOJ as central authority, working with DOJ'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 can delegate requests to one of its offices. In the United States, the OIA typically asks the local U.S. Attorney's office to carry out the MLAT request. Thus, an MLAT request may involve four law-enforcement offices.

The defense team must include lawyers positioned to engage with local and national authorities on the requesting and receiving ends. Even if the local office is 'only' carrying out the central authority's request, the request method executed can be significantly important, and the local office might have discretion in making a request.

Challenging a Request

The receiving central authority might be reluctant to limit or reject a request. Cross-border cooperation is rooted in fighting narcotics, organized crime and, most recently, terrorism. Procedures and attitudes are built on the premise that targets of such investigations should get as little due process as allowed. Also, the bureaucracy supporting a central authority has strong incentive to fulfill MLAT requests so that, when sending requests the other way, accommodation will be granted. But 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 the central authority will not reject a request, the request target might legally challenge the receiving government's execution of the request. The receiving government might strongly resist such a challenge, arguing that execution of a request is a foreign relations or administrative discretion matter with which courts shouldn't interfere. However, regardless of whether motivation for 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 MLAT execution requests as a routine matter, subject to little or no review; but judicial scrutiny of government action 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 on which it might defer to the agency's decision to investigate. Foreign law-enforcement agencies might lack similar controls. The requests might originate from countries without effective democratic political controls, ethical officials, or an American-style heritage of the rule of law.

MLAT request challenges start with treaty text, but can be based on constitutional grounds. For example: Did the request comply with all MLAT procedural requirements? (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 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 United States.)

Unfortunately, the government might carry out certain MLAT requests without seeking judicial approval or, if judicial approval is required, might seek that approval ex parte, which might prevent counsel from challenging a request until too late.

A relatively standard MLAT provision allows the requesting state to ask the receiving state to treat a request with confidence. DOJ tries to honor those requests and will routinely seek required judicial approval ex parte. Defense counsel needn't accept this practice, as not all MLAT requests meet ex parte proceedings. 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 a request, defendants can successfully challenge the ex parte procedure and persuade a court to grant respondent access to MLAT pleadings. This sometimes exposes hidden request defects that would not be brought to the court's attention ex parte.

DOJ might respond to an MLAT request from foreign prosecutors with 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 granted, usually to an Assistant U.S. Attorney, that Assistant U.S. Attorney can subpoena the witness's testimony. This subpoena, like any other, can be challenged through a motion to quash, but the question of what standard a court should apply in deciding such a motion remains unanswered. The court might even have the authority to establish the standard when issuing the commission through its authority under the statute to 'prescribe the practice and procedure' for taking the testimony.

Conclusion

U.S. case law discussing MLATs is sparse. As other governments increasingly make use of the MLAT as a tool to investigate and prosecute U.S. residents 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 might succeed in another. Accordingly, defense counsel should not treat an MLAT request as an unstoppable train run by U.S. and foreign bureaucracies, but as a chance 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.

For clients whose primary presence is in the United States, including
e-commerce businesses, 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 informally, more significant are agreements made between or among countries. Some agreements are memoranda of understanding ' bilateral agreements between the U.S. executive branch and a foreign sovereign. Others are treaties that are the 'law of the land' equal to Acts of Congress. Besides extradition treaties, law-enforcement agencies cooperate pursuant to tax, customs and, most important, mutual legal-assistance treaties ('MLATs').

How MLATs Work

The United States has entered MLATs with over 50 countries. These Congressionally ratified bilateral treaties apply to criminal cases and investigations. MLATs provide a generalized framework for law-enforcement agencies in one country to perform various pre-indictment investigative steps to help another country's criminal proceedings. Steps might include:

• Searching for and seizing evidence;
• Taking testimony;
• Serving documents; and
• Identifying assets to freeze or forfeit. (See, Justin A. Thornton, New Agreements with Europe, Business Crimes Bulletin, Oct. 2005, at 3.)

An MLAT has no standard template but many share features, and the government is trying to make the agreements standard. In September 2006, President Bush gave the Senate for ratification a new MLAT (and extradition treaty) between the United States and the European Union. This new MLAT will supplement existing bilateral U.S.-EU MLATs.

Given MLATs' variations, counsel must review particular treaty text, and associated legislative history from the Senate or corresponding foreign body.

DOJ prepares technical analyses of treaties before the Senate considers ratification. Although DOJ certainly has incentives to author these analyses with a pro-law enforcement tilt, a technical analysis can guide litigating treaty issues.

Building the Team

MLAT parties typically designate a 'central authority' in each country to receive and process MLAT requests. Foreign authorities seeking evidence in the United States deal with the DOJ as central authority, working with DOJ'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 can delegate requests to one of its offices. In the United States, the OIA typically asks the local U.S. Attorney's office to carry out the MLAT request. Thus, an MLAT request may involve four law-enforcement offices.

The defense team must include lawyers positioned to engage with local and national authorities on the requesting and receiving ends. Even if the local office is 'only' carrying out the central authority's request, the request method executed can be significantly important, and the local office might have discretion in making a request.

Challenging a Request

The receiving central authority might be reluctant to limit or reject a request. Cross-border cooperation is rooted in fighting narcotics, organized crime and, most recently, terrorism. Procedures and attitudes are built on the premise that targets of such investigations should get as little due process as allowed. Also, the bureaucracy supporting a central authority has strong incentive to fulfill MLAT requests so that, when sending requests the other way, accommodation will be granted. But 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 the central authority will not reject a request, the request target might legally challenge the receiving government's execution of the request. The receiving government might strongly resist such a challenge, arguing that execution of a request is a foreign relations or administrative discretion matter with which courts shouldn't interfere. However, regardless of whether motivation for 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 MLAT execution requests as a routine matter, subject to little or no review; but judicial scrutiny of government action 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 on which it might defer to the agency's decision to investigate. Foreign law-enforcement agencies might lack similar controls. The requests might originate from countries without effective democratic political controls, ethical officials, or an American-style heritage of the rule of law.

MLAT request challenges start with treaty text, but can be based on constitutional grounds. For example: Did the request comply with all MLAT procedural requirements? (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 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 United States.)

Unfortunately, the government might carry out certain MLAT requests without seeking judicial approval or, if judicial approval is required, might seek that approval ex parte, which might prevent counsel from challenging a request until too late.

A relatively standard MLAT provision allows the requesting state to ask the receiving state to treat a request with confidence. DOJ tries to honor those requests and will routinely seek required judicial approval ex parte. Defense counsel needn't accept this practice, as not all MLAT requests meet ex parte proceedings. 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 a request, defendants can successfully challenge the ex parte procedure and persuade a court to grant respondent access to MLAT pleadings. This sometimes exposes hidden request defects that would not be brought to the court's attention ex parte.

DOJ might respond to an MLAT request from foreign prosecutors with 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 granted, usually to an Assistant U.S. Attorney, that Assistant U.S. Attorney can subpoena the witness's testimony. This subpoena, like any other, can be challenged through a motion to quash, but the question of what standard a court should apply in deciding such a motion remains unanswered. The court might even have the authority to establish the standard when issuing the commission through its authority under the statute to 'prescribe the practice and procedure' for taking the testimony.

Conclusion

U.S. case law discussing MLATs is sparse. As other governments increasingly make use of the MLAT as a tool to investigate and prosecute U.S. residents 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 might succeed in another. Accordingly, defense counsel should not treat an MLAT request as an unstoppable train run by U.S. and foreign bureaucracies, but as a chance 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.