Excerpted from an article by Jody Godoy in the February 6, 2020 issue of Law360
A former prosecutor at the U.S. Department of Justice's Fraud Section alleged in an internal complaint that prosecutors abused foreign evidence requests, raising questions about whether enough is being done to protect defendants' rights in cross-border cases.
In a memo filed with the DOJ's Office of the Inspector General and first reported by The Wall Street Journal, former Fraud Section trial attorney Ankush Khardori claimed the section's leadership brushed off his concern that such requests may have been improperly used to suspend the statute of limitations in two cases.
Khardori also alleged that a prosecutor at a Fraud Section meeting had "advised other attorneys not to put 'in writing' anything that would suggest that an MLAT request had been made pretextually," referring to foreign evidence requests under mutual legal assistance treaties.
Pierce Atwood litigation partner Kathleen M. Hamann, an internationally recognized authority on cross-border law and a former DOJ prosecutor, cautioned that a hard requirement for prosecutors to exhaust all domestic avenues may not be the best solution, since the requests are usually broad and may turn up evidence not available domestically.
However, Kate agreed that questions of how to ensure defendants' rights are protected in cross-border cases — including in cases where the U.S. claims to conduct a "parallel" rather than "joint" investigation with another country, a distinction that affects defendants' rights — are worth considering.
That is particularly so since the process of filing mutual legal assistance treaty requests happens away from the public eye. The requests themselves are considered diplomatic documents and are usually not made public.
"It's a powerful investigative tool. It's necessary. But because it operates behind closed doors, there is a huge presumption of good faith," Hamann said.
Please see February 6, 2020 issue of Law360 for the complete article.