A Q&A today with T. Markus Funk (a partner at Perkins Coie) regarding his recent work “Mutual Legal Assistance Treaties and Letters Rogatory:  A Guide for Judges” published by the Federal Judicial Center (the education and research agency of the federal courts – copies of the Guide go to all federal judges in the US).  As pertinent to his work, prior to entering private practice, Funk was a federal prosecutor in Chicago for ten years and for two years led the efforts of the U.S. Department of Justice (DOJ) and U.S. State Department to establish the rule of law in post-conflict Kosovo.

Among other things, what sparked my interest in Funk’s work is that the FCPA’s legislative history evidences a genuine concern by many that individual defendants in FCPA enforcement actions would be disadvantaged in mounting a defense because of the inability or difficulty of obtaining evidence abroad.  Indeed, in the FCPA enforcement action against various individuals associated with Control Components Inc. (the so-called Carson enforcement action) there were pre-trial defense motions concerning the disparity between the DOJ’s ability to gather evidence abroad vs the defendants’ ability to do the same.

In short, navigating the arcane process of collecting evidence abroad is an important skill set for FCPA practitioners.

Q:  Collection of evidence abroad – whether done by prosecutors or defense counsel – is increasingly a hallmark of FCPA and US Travel Act cases.  Your publication discusses in detail the real-world do’s and don’ts for civil and criminal litigants seeking evidence and assistance from foreign jurisdictions.  While one audience for the publication is obviously federal judges, the publication also has value to prosecutors, defense counsel and other attorneys. How and why did the government approach you about writing this guide?

A:  I was not part of the FJC’s internal decision-making, but my understanding is that they consider – accurately, in my view – transnational evidence gathering a central challenge in today’s criminal and civil litigation environment.

True, Mutual Legal Assistance Treaties (MLATs) and letters rogatory (also known as “letters of request” when presented by a nonparty “interested person”) have been around for a long time and are the two primary vehicles for obtaining this evidence.   And while most lawyers and judges, including those handling multi-national bribery and corruption cases, have certainly heard about these two primary vehicles for foreign evidence-gathering, the nuances and practical realities of their use are still a mystery to many.  This publication, therefore, is intended to be a practical, how-to desk reference that anyone can consult to find immediate answers and to otherwise remove the red tape often associated with the process.

By the time the FJC sought to publish a guide for judges on this topic, I was already in private practice with Perkins Coie.  But a former AUSA and DOJ colleague of mine generously proposed me as an author because of my first-hand experience as a prosecutor handling incoming and outbound requests for transnational evidence gathering assistance, and my time abroad assisting courts overseas in their efforts to facilitate US requests.  When the FJC staff extended me an invitation to “write the book” on this subject, I was of course flattered and quickly accepted.

Q: How does a litigant go about obtaining evidence from overseas?

A: There are two primary means of obtaining evidence located in, or assistance from, a foreign jurisdiction: MLATs and letters rogatory.

MLATs are treaty-based mechanisms for seeking foreign law enforcement cooperation and assistance in support of an ongoing criminal investigation or proceeding.  Governments intentionally restrict access to assistance through MLATs to prosecutors, government agencies that investigate criminal conduct, and government agencies that are responsible for matters ancillary to criminal conduct, including civil forfeiture.

Letters rogatory, in contrast, have a considerably broader reach than MLATs:  They can be issued by U.S. federal and state courts as part of criminal, civil, and administrative proceedings, can be requested by anyone, and can be sent to U.S. federal and state courts by any foreign or international tribunal or “interested person.”  One major drawback, however, is that letters rogatory are only available once formal proceedings have commenced; they, therefore, typically cannot issue during the investigative, pre-charging stage of criminal proceedings.

So if you are counsel representing a company or individual in an FCPA case, the ability to use an MLAT is a non-starter.  You are (1) restricted to using letters rogatory to gather evidence from a foreign jurisdiction, and those letters rogatory (2) can only be issued after charges have been filed.

In the chart below I have tried to sketch out some of the key differences between MLATs and letters rogatory:

Q: Are MLATs and letters rogatory the only way to obtain foreign evidence?

A: No.  Experienced practitioners know that diplomacy, executive agreements, and information exchange through informal communications also play an important role in transnational criminal investigations and civil litigation.  Nevertheless, MLATs and letters rogatory do most of the heavy lifting.

Remember also that, in order for federal prosecutors to introduce evidence in court at trial, typically the foreign evidence must have been obtained through a formal MLAT.  As a practical matter, that means that, when the option is available, prosecutors will often first request and receive foreign evidence informally.  Only if and when the prosecutor determines the evidence or assistance is needed for a formal court proceeding (that is, once the prosecutor has determined that the evidence is “the good stuff”), will the prosecutor typically follow up with a formal MLAT request.

Q: As a practical matter, what is the biggest problem with letters rogatory?

A: The process for letters rogatory is without question more time-consuming and less predictable than the process for seeking action through MLATs. The reason for this significant difference is that the enforcement of letters rogatory is a matter of comity between courts, rather than treaty-based.  In other words, when a foreign court receives an MLAT request that request has been vetted and is being presented by US law enforcement because the two countries entered into a formal and binding treaty.  In contrast, when a court receives a letter rogatory the court knows that this is simply an informal request that relies on the good will of the receiving court and law enforcement authorities for its proper execution.  It, therefore, should come as no surprise that MLATs are typically given priority and are handled in a manner that reflects the understanding that the US government will review performance, whereas efforts are in the main more lax when it comes to acting on a letter rogatory request.

Q: How do MLATs differ from extradition treaties?

A: First, MLATs are broader in scope than extradition treaties, in that they can seek any number of types of assistance from abroad – not just the extradition of an individual.

In addition, unlike extradition treaties enforced in U.S. courts, MLATs for efficiency reasons do not require “dual criminality” – that is, they do not require that the offense for which the US seeks assistance also constitute a crime in the requested state.  The net result is that US authorities can use an MLAT request to receive assistance from County A in the investigation of a certain type of bribery that may not even be a crime in Country A.

Q: Do prosecutors ever use letters rogatory?

A: Prosecutors understandably consider letters rogatory an option of last resort for accessing evidence abroad.  They use them only when MLATs are not available, because, as we already discussed, foreign action on MLATs is almost always the most predictable and quickest way to go.

On the flip side, defense counsel and civil litigants are left to rely on the more slow-moving and erratic letters rogatory process when it comes to their efforts to gather evidence located abroad.

Q: Is there a reason that MLATs are not available to the defense?

A: Here is a little-known fact:  The first three MLATs signed by the United States – those with Switzerland, Turkey, and the Netherlands – included explicit provisions granting defense counsel permission to access evidence pursuant to an MLAT.  Subsequent MLATs, however, do not include such provisions.

In fact, the vast majority of MLATs signed by the United States explicitly exclude non-government access to U.S. processes.

Q: Is it fair that the more efficient MLAT process is reserved only for the prosecution?  Doesn’t this raise due process issues?

A: I would say that there can be no real dispute that the defense’s more limited access to evidence frequently results in an uneven playing field and delayed proceedings –  in fact, experience teaches that defense requests are on occasion completely ignored by the foreign authorities, or are only partially complied with.  The net result is that the letters rogatory process can result in very real due process/ access to justice issues for defendants seeking what they hope will be exculpatory evidence from abroad.

That said, the unwritten reality is that, in certain instances, and particularly when the defense team and prosecutors have a sound working relationship with each other, prosecutors might be willing to issue an MLAT on behalf of a defense request.  In these instances, where the prosecutor believes that defense claims of exculpatory evidence aboard is legitimate and not exaggerated, prosecutors might be willing to invoke the MLAT process in the interests of justice.

Of course, you won’t see this on-the-ground reality included in any treatise on the topic or enshrined as part of quasi-enforceable DOJ guidance or treaty.  And remember also that the defense cannot force prosecutors to issue MLATs if they do not want to.  If the government refuses to play ball, defense counsel can always complain to the court in an attempt to recruit the court as an ally in the defense’s effort to persuade the prosecutor to change course – but, again, this is not something the court can formally force the prosecution to do.

Q: Is this evidence-gathering imbalance of power a particular issue in FCPA cases?  What is the real-world impact?

A: As you know, federal prosecutors these days are more and more relying on extraterritoriality provisions in federal law (that is, provisions granting the government the ability to exercise authority beyond its normal jurisdictional boundaries), such as those incorporated into the FCPA.  They, as a consequence, are bringing cases in which much of the physical evidence and most potential witnesses are located overseas.  Because the MLAT process is only available to the prosecution, the defendant’s ability to efficiently collect and present countervailing, exculpatory evidence is sharply limited.

In addition, and as we discussed, even when properly executed, the letter rogatory process may take as long as a year, if not more, presenting courts and litigants with very real case management challenges.  Although delays can be mitigated by transmitting a copy of the request through INTERPOL or some other more direct route, even in urgent cases, such requests almost always take months to execute.  And such delays are of course a particular problem when defendants are detained, or when time is at a premium because the case is set for trial.

Q: Going back to my earlier question, and taking into consideration what you just said, is this lack of parity fair?

A: On balance, the defense almost always gets the short end of the fairness stick.  The lack of compulsion parity between prosecutors and the defense in obtaining foreign evidence without question has very real due process implications.  In most cases, foreign courts honor defense requests issued pursuant to letters rogatory.  However, as we have discussed, international judicial assistance is discretionary, based upon principles of comity rather than treaty, and is also subject to legal procedures in the requested country.  Compliance with a letter rogatory request, therefore, is left to the discretion of the court or tribunal in the “requested” jurisdiction (that is, the court or tribunal to which the letter rogatory is addressed), and is consequently often slow and left to the whim of the particular foreign personnel providing the assistance.

This process is complicated all the more when FCPA charges are involved.  After all, in those cases the underlying allegations involve foreign officials accepting or demanding bribes – allegations that, if true, may well prove quite embarrassing to the host nation that is the recipient of the letter rogatory request.  So don’t be too surprised if the typical heel-dragging phenomenon is even more exaggerated when official bribery and corruption in Country X are driving the requests for assistance from County X.

But this is the way the system is set up – and, as practitioners will confirm, it creates an undeniable power imbalance favoring the government.

Q: So what are defense counsel’s options to get the government to “assist” in gathering potentially exculpatory evidence?

A: As we discussed, defense counsel may argue to the government or the court that a vital piece of exculpatory evidence is located overseas, and that the MLAT process is the only realistic way of obtaining it.  This is why having a solid and mutually respectful working relationship with the prosecution can be helpful to the defense; no ethical prosecutor, after all, will want to employ procedural barriers and attendant delays as a tool to hide or prevent the admission of legitimate exculpatory evidence.

Counsel, in short, should always consider asking the government to voluntarily provide assistance with accessing potentially exculpatory evidence through the MLAT process.  And if the prosecution refuses, counsel is certainly free to petition the court for relief.   However, few, if any, courts have been receptive to such petitions in the absence of language in the MLAT that provides for defense access to evidence abroad (and, as we already determined, only the first three MLATs the US government executed contain such provisions).

Despite the formal prohibition on defense MLAT requests when a client’s liberty hangs in the balance competent defense counsel will do their best to use whatever means they can to explore and secure exculpatory evidence.  This is particularly true  in front of a sympathetic court that is able and willing to put pressure on the prosecution to “do the right thing,” even if the MLAT in question does not compel assistance to the defense.

Q: When evaluating a defendant’s request for letters rogatory to secure evidence located abroad, are there particular factors courts consider most important?

A: In my experience, the three core questions courts wants answers for are:  Exactly how and why is the sought-after evidence exculpatory?  Is the evidence sought abroad cumulative of evidence more readily available in the United States? Was the request for evidence made in a timely manner?

Q: How does having this MLAT and letter rogatory expertise assist your clients?

A:  Frequently, our firm’s individual and company clients face government investigations or civil disputes implicating numerous jurisdictions.  Knowing the procedure and practical challenges involved in collecting potentially game-changing evidence from abroad is a major litigation advantage.

What is more, the formal rules governing this evidence-gathering, as we discussed, do not displace the unwritten reality that credibility and experience can go a long way in persuading prosecutors, US courts, adverse parties, or foreign tribunals to act in a responsive and professional manner.  Having dealt with these issues as a federal prosecutor, as a lawyer serving overseas in post-conflict Kosovo for the State Department, and as private-practice counsel to companies, I believe clients benefit from the experience we gained and the personal insights we can provide.  These insights, in turn, translate into opportunities to protect clients’ rights, gain a more equal playing field, have a client’s charges dropped or reduced, reach a fair negotiated resolution, or at a minimum maintain litigation parity.