Category Archives: 5th Amendment: Self-Incrimination

The Clash of Legal Cultures in the Brave New World of International Law Enforcement

by Peter B. Pope, Nancy C. Jacobson, and Kelly Hagedorn

Defense lawyers all around the world have heard loud and clear that prosecutors and police agencies have announced a new age of international cooperation.  Prosecutors from one country have been posted to the offices of another.  Agents from nations around the world now sit at desks next to each other in central locations like London.  Global resolutions of big cases are being announced by enforcers in multiple jurisdictions.  One of the main subject-matter focuses of these joint cases has been anti-corruption – namely the Foreign Corrupt Practices Act in the United States and the Bribery Act in the United Kingdom. Continue reading

The Second Circuit Clarifies How U.S. Constitutional Principles Apply in Multijurisdictional Investigations

By Frederick T. Davis

In United States v. Allen (PDF: 511 KB), the Second Circuit held that self-incriminating statements compelled by a foreign sovereign cannot be used, directly or indirectly, in a U.S. prosecution. The opinion thoughtfully analyzes how U.S. constitutional principles apply in cross-border investigations and may have some impact on how such investigations are conducted in the future.

During the well-known investigations of alleged manipulation of the London Interbank Offered Rate (“LIBOR”), U.K. citizens and low-level bank employees Anthony Allen and Anthony Conti were suspected of artificially adjusting exchange rate information to affect LIBOR and benefit their confederates.  The U.K. Financial Conduct Authority (“FCA”) compelled Allen and Conti’s testimony under the Financial Services and Markets Act 2000 (“FSMA”). The FSMA provides that the FCA could not use Allen and Conti’s statements against them but could use the “fruits” of any investigation developed on the basis of their statements. The FCA also compelled testimony from Paul Robson, one of Allen and Conti’s co-workers, who provided generally exculpatory information regarding himself, Allen and Conti.  Later, the FCA commenced an enforcement action against Robson and provided him with transcripts of Allen’s and Conti’s statements, which Robson carefully reviewed.  The FCA ultimately decided not to prosecute Allen, Conti, or Robson. Continue reading