A NEW HURDLE TO INTERNATIONAL COOPERATION IN CRIMINAL INVESTIGATIONS: WHETHER FOREIGN GOVERNMENT-COMPELLED TESTIMONY IMPLICATES THE PRIVILEGE AGAINST SELF-INCRIMINATION.

• Author: Reich, Jennifer
• Position: COMMENT

INTRODUCTION 790 I. The Problem Posed by United States v. Allen 792 II. Analyzing the Balsys Supreme Court Precedent 794 A. Applying Three Core Balsys Arguments 795 1. Linguistic Context of the Self-incrimination Clause 796 2. Limitations Imposed by the Same-Sovereign Rule 798 3. Balancing Policy Considerations 801 B. Cooperative Internationalism as a Threshold 804 III. Other Relevant Comparisons 807 A. Assuming Applicability of the Fifth Amendment to Foreign Testimony 807 B. Admissibility of Foreign Testimony Without Miranda Warnings 809 1. Analyzing a Voluntariness Standard 809 2. Due Process Under the Self-incrimination Clause 815 C. Congressionally Compelled Testimony 816 IV. Examining Solutions 819 A. Declining to Apply U.S. Constitutional Protections Abroad 820 B. Basing Self-incrimination on the Laws of Foreign Partners 820 C. Allowing Testimony After Reasonable Efforts Against Taint 822 D. Setting a Clear Line for Cooperative Internationalism 824 E. Recommending a Hybrid 828 F. Requiring Full Fifth Amendment Protections 826 Conclusion 828 INTRODUCTION

As globalization has fostered increasing cross-border crime, so too has it triggered increasing international law enforcement cooperation. Government leaders like former FBI Director James Comey, (1) former SEC Chair Mary Jo White, (2) former Attorney General Loretta Lynch, (3) and Republican Senator Orrin Hatch (4) have all emphasized the urgency of such expansion in numerous speeches and in their allocation of resources. Cases of terrorism, cybercrime, financial fraud, and corruption are forcing the U.S. government to rely increasingly on foreign partners for extraditions, evidence gathering for use at U.S. trials, parallel investigations, and informal investigative support. However, U.S. jurisprudence has not kept pace with these developments. An emerging struggle for U.S. prosecutors comes when our laws, and in particular our Constitution, clash with those of a partner country. This Comment will outline one such predicament found in United States v. Allen: whether the Fifth Amendment bars the admission of testimony compelled by a foreign sovereign. (5) Because there are no other cases that have addressed this specific issue, (6) this Comment will analogize to related Supreme Court precedent and other situations to theorize how other courts will and should treat foreign government-compelled testimony. Part I of this Comment will first analyze the full Allen hypothetical and the Second Circuit's ruling. Part II of the Comment will consider the Department of Justice's analogizing of the Allen situation to the Supreme Court's decision in United States v. Balsys (7) regarding the applicability of the Fifth Amendment in a U.S. deposition where the defendant fears criminal prosecution by a foreign government. It will address three arguments raised by the Balsys Court in arriving at its decision, namely 1) the textual context of the Self-incrimination Clause, 2) the Same-Sovereign Rule, and 3) relevant policy considerations, and apply them to the Allen situation. Part II will then apply the Balsys Court's suggestion of a standard based on "cooperative internationalism," or closeness of law enforcement cooperation, to trigger Fifth Amendment applicability. Part III of the Comment will assess 1) courts' occasional practice of assuming applicability without any discussion, 2) parallels to the case law on Miranda warnings and broader due process arguments, and 3) testimony compelled by Congress. Part IV will analyze the spectrum of potential standards courts could apply to the admissibility of foreign government--compelled testimony. In addition to considering six different options, from barring any self-incriminatory compelled testimony to allowing all of it, the Comment will recommend a middle path forward based on differing levels of cooperation and good faith efforts by prosecutors. Although foreign-compelled testimony enters complex legal territory, it should be allowed into evidence where the U.S. government is not acting entirely in concert with foreign officials and where U.S. officials have taken reasonable steps to avoid Fifth Amendment concerns.

1. THE PROBLEM POSED BY UNITED STATES V. ALLEN

   In United States v. Allen, the Southern District of New York and the Second Circuit diverged on a highly salient issue of first impression. Anthony Allen and Anthony Conti, among others, were charged in federal court with wire fraud after they were suspected of manipulating U.S. dollar and Japanese Yen London Interbank Offered Rates (8) (LIBOR). (9) As part of an independent United Kingdom investigation into the same conduct, Allen and Conti were compelled to testify by the U.K.'s Financial Conduct Authority (FCA), (10) potentially under penalty of imprisonment. (11) U.K. regulators granted the men direct use immunity, but not derivative use immunity, a distinction disallowed under U.S. law. (12) Paul Robson, who ultimately became an immunized witness in the United States, was interviewed by the FCA and, pursuant to U.K. law, provided with transcripts from Allen's and Conti's compelled interviews. (13) In response, attorneys for Allen and Conti both submitted motions asking the U.S. court to compel immunity for their clients, but they were rejected. (14) After Robson's testimony in the U.S. contributed to a successful conviction of Allen and Conti, their lawyers submitted a motion for a post-trial Kastigar hearing. (15) They argued that, because Robson's review of their FCA transcripts violated their Fifth Amendment rights and therefore tainted Robson's testimony in the U.S. proceedings, the charges against Allen and Conti should be dismissed. (16)

   Cognizant of the potential problem, the U.S. Department of Justice (DOJ) had made clear to Robson before he testified in U.S. court that he was not to share any of the information he gleaned from Allen's and Conti's transcripts with U.S. prosecutors, and the DOJ held extensive meetings with the FCA about the need to establish a wall between the two agencies to prevent any taint of the DOJ's case. (17) In fact, the DOJ went as far as to use a separate filter team of attorneys from a different section of the Department to address issues related to the FCA depositions. (18) Of note, the potential U.S. constitutional concerns of compelled testimony had apparently been raised by defense counsel to U.K. authorities during a U.K. hearing. (19)

   Intentionally avoiding the question of the Fifth Amendment's applicability, (20) Judge Rakoff of the Southern District of New York settled the hearing on a separate issue. Judge Rakoff held that the DOJ established a "strict and effective wall of separation" (21) that insulated the government's case from any potentially tainted evidence and met whatever Kastigar burden might exist on the facts presented. But on appeal, the Second Circuit disagreed, finding a blanket ban "on the use of compelled testimony in American criminal proceedings... even when a foreign sovereign has compelled the testimony" (22) Moreover, the Second Circuit found that the witnesses were substantially exposed to compelled testimony, reversing the convictions and dismissing the indictment. (23)

   The Second Circuit's ruling raises two issues: 1) whether resource-intensive, complex, and potentially risky machinations by the DOJ should be necessary, and 2) in the face of such strict judicial scrutiny, whether close international law enforcement cooperation is advisable under the Second Circuit's new precedent. Fundamentally, the question that needs to be answered is this: In a case where otherwise inadmissible evidence from a foreign government's legal proceedings leaks into a U.S. prosecution through no direct action by U.S. authorities, can that evidence taint the entire case, requiring dismissal? As Allen demonstrates, this question is no longer a mere hypothetical. (24)

2. ANALYZING THE BALSYS SUPREME COURT PRECEDENT

   The closest analogous Supreme Court precedent to the Allen situation, and the primary precedent cited in the Government's brief opposing the Kastigar motion to dismiss in Allen, is United States v. Balsys. (25) There, Justice Souter's 7-2 majority opinion limited Fifth Amendment protections for individuals facing foreign prosecution. (26) The Balsys plaintiff was a suspected Nazi war criminal subpoenaed by the Department of Justice's Office of Special Investigations (OSI), an office formed specifically to denaturalize and deport Nazis. (27) He invoked the Fifth Amendment at a DOJ deposition, claiming that his responses to OSI's questions "could subject him to criminal prosecution by Lithuania, Israel, and Germany." (28) The Supreme Court rejected the plaintiff's refusal to testify, basing its opinion on the textual context of the Fifth Amendment in the Constitution, the same-sovereign rule originally gleaned from United States v. Murdock, (29) and policy considerations that weighed heavily towards executive branch deference. (30) Ultimately, the Balsys Court found that sufficiently close cooperation between U.S. prosecutors and their foreign counterparts could be grounds for exclusion, but that the facts at issue in Balsys did not merit such a finding. (31)

   These elements offer unique insight into the problem of foreign-compelled testimony, because Balsys is Allen's mirror image. In Balsys, U.S. prosecutors compelled statements that could be used in possible overseas prosecutions, while in Allen overseas prosecutors compelled statements that were used in a U.S. prosecution. Balsys also introduces the salient concept of a threshold point for "cooperative internationalism," or a point at which U.S. and foreign prosecutors collaborate so closely that they should be considered the same for Fifth Amendment purposes. (32) As such, although key distinctions exist between the two cases, the Balsys decision provides a foundation for analyzing an Allen-type situation.

   1. Applying Three Core Balsys...