Today’s post is a Q&A with Markus Funk (Perkins Coie).
Funk authored the second edition of “Mutual Legal Assistance Treaties and Letters Rogatory: Obtaining Evidence and Assistance from Foreign Jurisdictions” recently published by the Federal Judicial Center.
Q: The Federal Judicial Center published the first edition of your guidebook back in 2014. What prompted a second edition?
A: In the past ten years, and with technology making the world ever smaller and more connected, the need to obtain evidence and assistance from foreign jurisdictions has become even more pressing. Also, new legal instruments, like the 2018 CLOUD Act, which permits federal law enforcement to compel U.S.-based technology companies via warrant or subpoena to provide requested data stored on servers regardless of whether the data is stored in the United States or overseas, have complicated the picture. I connected back with the team at the Federal Judicial Center, and we agreed that it was the right time to publish an updated and expanded second edition to help judges, practitioners, and other interested parties gain a practical understanding of how foreign evidence and assistance can be secured using the MLAT and letters rogatory practices.
Q: From a big-picture perspective, what is an “MLAT”?
A: Let’s first break down the term “MLAT.” It stands for “Mutual Legal Assistance Treaty.” As the name suggests, MLATs are treaty-based mechanisms that facilitate foreign law enforcement cooperation and assistance in ongoing criminal investigations or proceedings.
It is important to note that the MLAT process, now codified at 28 U.S.C. 1782, is primarily accessible to government officials, typically prosecutors. This usually quicker and more efficient method of gathering evidence and obtaining assistance is unavailable to civil litigants and criminal defendants. Although some courts have pressured the government to use the MLAT process for criminal defendants in specific cases, these are exceptions.
Q: Is it fair that criminal defendants, including defendants in FCPA cases, are prevented from using MLATs?
A: It certainly is true that MLATs are not available to private parties. Therefore, defense counsel, like civil litigants, are left to rely on the more cumbersome and slow letters rogatory process if they want to gather evidence located abroad. The predictable and understandable result is that defense counsel complain about disparity in access to evidence and undue delay prejudicing their clients.
Although defendants have repeatedly raised such access-to-justice issues, these arguments have largely fallen flat. That said, in one recent case (United States v. Coburn, No. 2:19-cr-00120 (D.N.J.), the Indian government rejected the defendants’ letters rogatory requests. The government, perhaps not fully understanding the distinction between letters rogatory and MLATs, directed that all discovery requests from defendants should be submitted under the MLAT process.
The Assistant US Attorney handling the case informed the court that the government would like be able to comply with that request. However, the Office of International Affairs (or “OIA,” which oversees MLAT requests) saw things differently. They said that the US-India MLAT treaty did not allow for this. The district court thereafter challenged OIA’s analysis and requested that the prosecutors confer with OIA to see if it would reassess its opinion. In the end, OIA relented, and MLAT requests were issued. However, how OIA will handle such “voluntary” prosecutorial offers in the future is far from clear. My suggestion is that criminal defendants should not plan on getting DOJ/OIA assistance, absent very unusual circumstances, typically involving very determined and assertive judges. Letters rogatory will likely be their most promising avenue – but because letters rogatory are far slower and less effective, defense counsel are smart to send them as soon as permissible.
Q: How many MLATs are there?
A: This is a moving target, but the US has bilateral MLATs in force with each of the 56 European Union member states, many of the Organization of American States member states, and dozens of other countries worldwide.
Q: From a big-picture perspective, what are “letters rogatory”?
A: Letters rogatory, also known as “letters or requests” when sent by a non-party “interested person,” have far broader applications than MLATs. U.S. federal and state courts can prepare outgoing letters rogatory as part of criminal, civil, and administrative proceedings. However, as I mentioned, they are also more cumbersome and less guaranteed to produce usable results by the time of trial.
These letters rogatory are issued by the U.S. State Department under 28 U.S.C. § 1781. That said, Section 1781(b) also authorizes a district court to bypass the State Department and transmit the outgoing letter rogatory directly to the foreign “tribunal, officer, or agency.” Section 1781 also does not bar state courts from going it alone and issuing a letter rogatory. In practice, however, it is considerably less likely that a foreign court will be as responsive when there is no State Department involvement. Litigants should therefore try to get State Department involvement whenever, and as soon as, they can.
Q: Can letters rogatory be sent while an investigation is still pending and no formal charges have been filed?
A: Letters rogatory are available to prosecutors, defendants, and civil litigants only once formal proceedings have commenced. Put another way, unlike MLATs, letters rogatory are typically unavailable during the investigative stage of criminal proceedings.
To the routine frustration of litigants, and as mentioned, the process for letters rogatory is, therefore, significantly more time-consuming and unpredictable than that for MLATs. This is mainly because enforcing letters rogatory is a matter of comity (friendly behavior showing respect) between courts rather than the result of treaties.
Q: If a foreign country makes an MLAT request of the U.S. do they have carte blanche to request anything? Are US citizens afforded any procedural safeguards?
A: Incoming MLAT requests sent by foreign authorities are supervised by OIA and district judges. They can only be executed if they are consistent with U.S. law, including rules relating to privilege and US constitutional requirements.
Q: How do US laws apply when the US authorities request assistance from foreign counterparts?
A: U.S. legal standards do not apply to the seizure of evidence overseas, provided the foreign country is conducting the investigation independently (that is, not at the direction of US law enforcement). As the Seventh Circuit ruled in United States v. Stokes back in 2013, “[e]vidence obtained in a search of an American citizen by foreign authorities operating within their own country is generally admissible in the courts of the United States even if the search does not otherwise comply with our law, including the law of the Fourth Amendment.” Of course, if, say, torture or other improper compulsion are involved in extracting statements, then the court will have to review admissibility separately.
The net result is that US courts may exclude evidence gathered by foreign governments only where there is joint action by both the U.S. and foreign governments and where solo actions by the foreign government do not “shock the conscience” of the U.S. court.
Q: How are MLAT requests handled?
A: There is a presumption that MLAT requests should be honored. That said, a district court must still review the terms of each request, checking that they comply with the terms of the underlying treaty and U.S. law. However, an offense for which the foreign state seeks assistance need not be a crime in the US.
Q: Does the MLAT process have any impact on statutes of limitation?
A: Yes. Under 18 U.S.C. § 3292, when the government seeks evidence from abroad before the return of an indictment, it routinely files an ex parte application with the court to toll the statute of limitations. If the court, using a preponderance of the evidence standard, concludes that it “reasonably appears” the evidence is located overseas, it can toll the statute of limitation. Note, however, that the tolling may not exceed three years.
Q: So what should litigants needing evidence overseas do?
A: This will sound very self-serving, not a first for a private practitioner, but the first step is to consult with counsel that has experience with these strange and arcane rules. Although there are undoubtedly many correct ways to gather evidence and secure overseas assistance, there are also many opportunities to mess things up and severely prejudice a client’s core interests. Going it alone, therefore, is not something I would do when it comes to this topic unless you have deep experience handling these statutory and practical issues.
