FCPA Internal Investigations (Part IV of IV): How Far Can the Justice Department Reach?
When conducting an internal investigation, it is important to consider the Justice Department’s ability to gather and compel the production of evidence in foreign countries. It is a strategic issue which is at the forefront of every FCPA internal investigation.
This issue is particularly important when dealing with third-party agents who may be involved in foreign bribery. Assuming that DOJ has jurisdiction over a foreign entity, there are a number of mechanisms that can be used to obtain testimonial and documentary evidence from the foreign individual or entity.
1. Grand Jury Subpoenas may be issued to a foreign witness residing in foreign country if a court determines that there is personal jurisdiction over the individual. There are formidable challenges to serving a grand jury subpoena to a foreign individual or entity in a foreign state and compelling that person or entity’s appearance and /or production of documents. In serving a grand jury subpoena for documents, the “appropriate foreign government must be notified prior to issuing the subpoena” via a “letters rogatory.” Once a subpoena is issued to a foreign national, the Customs Service may institute a border watch and notify the government if the foreign national enters a U.S. territory so that the subpoena may be served. Once served, the failure by any recipient of a subpoena to appear can lead to criminal or civil contempt charges. 18 U.S.C. § 401; Fed. R. Crim. P. 17(g) & 42; 18 U.S.C. § 1826
2. Letters Rogatory, also known as letters of request, is a request made by a court to a foreign court to obtain evidence, testimony or documents from a witness. While in the U.S., letters rogatory are commonly used to obtain evidence. It is theoretically possible to use letters rogatory to serve a summons, subpoena or other legal notice. See 22 C.F.R. 92.54 (Apr. 1, 2006) (letters rogatory are “requests for the taking of evidence, the serving of a summons, subpoena, or other legal notice, or the execution of a civil judgment.”); Due to the informal and non-binding nature of letters rogatory, it is unlikely that a foreign national, even if served a subpoena while in a foreign state, would be compelled to appear before a U.S. court or jury. What is more likely is that the individual would be cajoled or compelled to produce documents or submit to a deposition in the foreign state.
Letters rogatory are non-binding, time consuming and subject to the laws of the foreign state. The execution of letters rogatory “may take a year or more.” Letters Rogatory, U.S. Dep’t of State website, Bureau of Consular Affairs, available at http://travel.state.gov/law/judicial/judicial_683.html; 22 C.F.R. 92.54 (Apr. 1, 2006) However, in “urgent cases,” that timeline may be reduced “by transmitting a copy of the request through Interpol, or through some other more direct route,” although it is unclear how this alternative process would hasten the process. United States Attorneys’ Manual, Title 9, § 275, available at, http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm00275.htm.
3. Mutual Legal Assistance Treaties (“MLATs”) typically provide prosecutors the ability to summon witnesses, to compel the production of documents and other real evidence, to issue search warrants, and to serve process in a foreign state. The scope of assistance depends on the specific MLAT but many include: (a) taking the testimony or statements of persons; (b) providing documents, records, and articles of evidence; (c) serving documents; (d) locating and identifying persons; (e) transferring persons in custody for testimony or other purposes; (f) executing requests for searches and seizures; (g) tracing, identifying, and immobilizing criminally obtained assets; (h) assisting in proceedings related to forfeiture, restitution, and collection of fines; and (i) any other form of assistance not prohibited by the laws of the Requested State. Many MLATS require the requested state to execute a request promptly. Foreign states usually reserve the right to refuse a request if it: relates to a political offense; relates to an offense under military law which would not be an offense under ordinary criminal law; or the execution of the request would be contrary to the Constitution of the Requested State or would prejudice the security or other essential national interests of that State.
If a person from whom information is being sought refuses to cooperate, he or she may be compelled to testify or produce documents, although he or she is usually subject to Foreign State laws on immunity, incapacity or applicable privilege. Under many MLATs, if the person asserts a claim of immunity or privilege under the laws of the U.S., the testimony or evidence usually can be taken subject to a later claim of immunity or privilege which will be resolved by the US authorities.
4. Presence in the United States can be sufficient, even transitory presence such as a layover, for the United States to assert personal jurisdiction over a foreign national. For example, in November 2006, U.S. authorities arrested Christian Sapsizian, a French citizen and non-U.S. resident indicted for alleged violations of the FCPA, during a layover in Miami, Florida.
5. Extradition Treaties can be used to compel the appearance of a foreign national before a U.S. court. For example, Jeffrey Tesler, a U.K. citizen and licensed solicitor, was extradited to the U.S., and subsequently pleaded guilty to one count of conspiracy to violate the FCPA and one count of violating the FCPA. Most extradition treaties require the issuance of an arrest warrant or a conviction, and require that the qualifying offense must be punishable under the laws of both states by deprivation of liberty for one year or more. Accordingly, if bribery of a foreign official is not conduct that is punishable by one year or more of incarceration in a foreign state, violations of the FCPA’s anti-bribery provisions may not be an extraditable offense.
6. Interpol is an international police organization that facilitates cross-border police cooperation, even where diplomatic relations do not exist between particular countries. Action is taken within the limits of existing laws in each country. When requested by a member state, Interpol will circulate notices worldwide to other law enforcement agencies and organizations. Relevant to the situation is a Red Notice, which seeks the location of person(s) with a view towards arrest and extradition. The basis for a Red Notice is either an arrest warrant or a conviction with a pending sentence to be served. Some member countries treat a Red Notice as a valid request for provisional arrest. Some countries require further action before arrest and extradition. For example, U.S. federal law prohibits the arrest of the subject of the Red Notice based on the notice alone. Instead, the DOJ will determine if a valid extradition treaty exists and if the person is extraditable, and after a diplomatic request for a provisional arrest is received from the requesting country, the U.S. Attorney’s Office will obtain an arrest warrant requesting extradition.