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Second Circuit Rejects Fourth Amendment Challenge To Foreign Evidence Obtained Through MLAT

Today’s post is from Stanley Twardy and Elizabeth Latif of Day Pitney LLP concerning a recent Second Circuit decision concerning foreign obtained evidence.

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In 2002, the DOJ stated that the lack of cooperation in obtaining evidence located overseas was “the chief difficulty in investigating and prosecuting foreign bribery cases.” Since then, there has been increased cooperation between Foreign Corrupt Practices Act prosecutors and foreign authorities through Mutual Legal Assistance Treaties (“MLATs”), which allow U.S. prosecutors to request a foreign state to take testimony, obtain documents, issue search warrants, or otherwise assist with an investigation. For example, in United States v. Green, 08-CR-059 (C.D. Cal. 2008), prosecutors obtained bank records from Swiss authorities pursuant to an MLAT request and used them to connect bribe payments to overseas accounts in the name of the foreign official’s daughter.

The Second Circuit recently rejected a defendant’s Fourth Amendment challenge to evidence obtained from foreign authorities pursuant to an MLAT request, holding that the exclusionary rule only applies to foreign evidence where there is U.S. control or direction of the foreign investigation, an intent to evade the Constitution, or where the foreign agency’s actions shock the judicial conscience. Although this was not an FCPA case, its conclusions can be applied in the FCPA context.

The prosecutors in United States v. Matthew Getto made an MLAT request to the Israeli National Police (“INP”) to assist with the investigation of a U.S. lottery scam that had been operating out of three “boiler rooms” located in Israel. The relevant MLAT, the Treaty with Israel on Mutual Legal Assistance in Criminal Matters, provides that the United States and Israel “shall provide mutual assistance . . . in connection with the investigation, prosecution, and prevention of offenses, and in proceedings related to criminal matters.” See Treaty with Israel on Mutual Legal Assistance in Criminal Matters, U.S.-Israel, Jan. 26, 1998, S. Treaty Doc. No. 105-40, 1998 WL 1784226.

Pursuant to the MLAT request, the FBI provided the INP with details of its investigation, including Israeli phone numbers of suspects in the case. Using this information, the INP was able to identify a “SIM” card associated with a suspect’s phone number, which led them to interview employees at Tel Aviv restaurants. Through the interviews, the INP learned the address of one of the scheme’s “boiler rooms” and then interviewed the superintendent of the building in which it was located. The INP then searched the boiler room and installed a hidden surveillance device within it. Evidence obtained from that search and surveillance linked the scheme to Getto, who was arrested in the United States.

Getto moved to suppress the evidence gathered by the INP on the basis that it was obtained in violation of the Fourth Amendment and was subject to suppression based on the close cooperation between the INP and the FBI and the egregiousness of the INP’s actions. The district court denied the motion. Getto was convicted after a bench trial on stipulated facts and was sentenced principally to 150 months’ imprisonment. He subsequently appealed the suppression issue to the Second Circuit.

The Second Circuit affirmed the district court’s denial of Getto’s suppression motion. The Court began by noting that, in its recent decision in United States v. Lee, it reaffirmed the long-standing rule that “‘suppression is generally not required when the evidence at issue is obtained by foreign law enforcement officials.’” This rule has sometimes been called the “international silver platter doctrine.” The Court in Getto reiterated that the only exceptions to this general rule are: (1) where the cooperation with the foreign law enforcement officials implicates constitutional concerns, and (2) where the conduct of the foreign officials is so egregious it shocks the judicial conscience.

The Court easily held that the INP’s actions did not shock the judicial conscience, even assuming arguendo the credibility of Getto’s allegations that the INP had searched the boiler room before it had obtained a warrant and had lied about material facts in its warrant application. These allegations did not, the Court held, rise to the level of “‘torture’” or “‘terror’” or a “‘violat[ion of] fundamental international norms of decency.’”

As to the close cooperation between the INP and FBI, the Court declined to adopt the “joint venture” doctrine adopted by the First, Ninth, and Eleventh Circuits, which provides for application of the Fourth Amendment exclusionary rule where the participation of U.S. law enforcement in the investigation is so substantial that the investigation can be characterized as a joint venture between the U.S. and foreign law enforcement. Instead, the Second Circuit reiterated its prior holdings that the Fourth Amendment exclusionary rule applies only where the foreign law enforcement officials are “virtual agents” of the U.S. or where the cooperation between the countries is designed to evade constitutional requirements. The Court held that virtual agency was not established by the facts that the INP undertook its investigation pursuant to an MLAT request or that the U.S. shared the results of its investigation or that the foreign government provided a live feed of the search to U.S. law enforcement. The Court also found no intent to evade constitutional requirements.

As for what would constitute virtual agency, the Court in Getto stated that the U.S. would have to “play some role in controlling or directing the conduct of the foreign parallel investigation.” The Court noted that the U.S. prosecutors were not “involved in the preparation, submission and execution of search warrants” or “in interviews of witnesses or defendants,” thereby suggesting that such actions may rise to the level of control or direction.

The rationale for the Court’s decision, which echoed that in Lee and the cases cited in Lee, was that exclusion of the fruits of a foreign investigation serves no deterrence purpose where U.S. law enforcement agents do not have the authority to control or direct the investigation. It is arguable, however, that the situation in Getto is different from that of Lee and the other cases because the evidence came from an MLAT request, as opposed to being handed over on a silver platter from an ongoing foreign investigation. Indeed, it could be argued that a foreign investigation initiated pursuant to an MLAT is not, as the Second Circuit in Getto characterized it, a parallel investigation. It could also be argued that there will naturally be a deterrent effect on foreign police if weeks or months of work done in response to an MLAT request is thrown out by a U.S. court. These issues, as well as the circuit split on “virtual agency” versus “joint venture,” will likely be raised again. As FCPA enforcement continues at a vigorous pace, the collection of evidence from abroad will continue as well, and therefore these issues should stay top of mind for FCPA practitioners.

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