1. Criminal Investigations Mary Butler, RLA, U.S. Embassy-Kyiv and Paul Pelletier, Defense Advocate

2. Miami, Florida USA

3. Washington, District of Columbia USA

4. “Better that a guilty person goes free than that an innocent man is convicted.” “Better that a guilty person goes free than that an innocent man is convicted.”

5. American Criminal Justice Films

6. Abramoff case

7. Gaining cooperation of insiders through plea and cooperation agreements is the key to investigating and prosecuting complex crimes Gaining cooperation of insiders through plea and cooperation agreements is the key to investigating and prosecuting complex crimes

8. NOT THE ROLE OF COURT To find evidence to support conviction To find evidence to support conviction To find the facts and arrive at the verdict (“speak the truth”) independently from the parties subject to procedural safeguards and protections To find the facts and arrive at the verdict (“speak the truth”) independently from the parties subject to procedural safeguards and protections

9. Safeguards include Ban against use of confessions Ban against use of confessions Prohibition against use of evidence obtained illegally Prohibition against use of evidence obtained illegally Prohibition of use of evidence derived from illegally obtained evidence: Prohibition of use of evidence derived from illegally obtained evidence: Without a court warrantWithout a court warrant Obtained after time deadlines for investigationObtained after time deadlines for investigation Right to defense counsel even if can’t afford to hire counsel Right to defense counsel even if can’t afford to hire counsel

10. Historically, Key Differences Between U.S. and Ukrainian Systems  Role of the Prosecutor Works closely with Agents investigating caseWorks closely with Agents investigating case Drafts criminal chargesDrafts criminal charges Represents United States in CourtRepresents United States in Court Works with witnesses and victimsWorks with witnesses and victims No General Supervision No General Supervision

11. NEW CPC Requires one prosecutor per case Requires one prosecutor per case Prosecutors to guide investigations Prosecutors to guide investigations Prosecutors are responsible to ensure that inculpatory and exclupatory evidence is produced or the evidence should be excluded Prosecutors are responsible to ensure that inculpatory and exclupatory evidence is produced or the evidence should be excluded

12. Specialization USA: vertical specialization substantive specialization with specific experience and detailed knowing of the case Ukraine: horizontal specialization corruption organized crime narcotics financial fraud procedural stage division operative stage investigative stage trial

13. Requirement of Specialization of Prosecutors Specialization Specialization Reactive Crimes UnitReactive Crimes Unit Drug UnitDrug Unit Complex Fraud UnitComplex Fraud Unit Health Care Fraud UnitHealth Care Fraud Unit Organized Crime and Gang UnitOrganized Crime and Gang Unit National Security UnitNational Security Unit Public Corruption UnitPublic Corruption Unit Asset Forfeiture UnitAsset Forfeiture Unit

14. GOAL of INVESTIGATIONS Collect evidence which is admissible at trial to prove guilt or to impeach witnesses Collect evidence which is admissible at trial to prove guilt or to impeach witnesses

15. Conclusion of investigation Focus on whether you have gathered sufficient evidence to prove the guilt beyond a reasonable doubt Focus on whether you have gathered sufficient evidence to prove the guilt beyond a reasonable doubt Charge the person, if the evidence is sufficient or close investigation permanently or unless other evidence is uncovered Charge the person, if the evidence is sufficient or close investigation permanently or unless other evidence is uncovered

16. What is Admissible Evidence? Direct evidence Direct evidence Circumstantial evidence Circumstantial evidence Strict limits on out of court statements Strict limits on out of court statements Strict limits on illegally obtained evidence Strict limits on illegally obtained evidence Very similar in Ukraine Very similar in Ukraine

17. Not Evidence in USA or Ukraine Notes Evidence can be presented only in court Dossier (delo)

18. 2 kinds of cases H i s t o r i c a l (murder) Crime is completed R e a l t i m e (corruption) Crime is conducted

20. Keys to successful criminal investigations 1) Police and prosecutors working closely together from the beginning of the investigation a) concurrence is required by internal agency rules a) concurrence is required by internal agency rules b) coordination required because court approval required for some of the most intrusive techniques and prosecutors represent the police in court (search warrants; wire taps; tracking devices, etc.) b) coordination required because court approval required for some of the most intrusive techniques and prosecutors represent the police in court (search warrants; wire taps; tracking devices, etc.) c) leads to commitment to the case by the prosecutor c) leads to commitment to the case by the prosecutor 2) Necessary to closely follow the procedural rules and law to avoid suppression of evidence at trial 3) Usually involves use of cooperating defendants 4) Leads to collection of credible evidence that shows motive and reasonableness of the government's action and arguments for guilt

21. Most powerful tool to investigate and prosecute complex crimes like corruption Plea agreements to gain cooperation of defendants who have knowledge of an insider in past or on-going criminal activity Plea agreements to gain cooperation of defendants who have knowledge of an insider in past or on-going criminal activity Suspect/ defendants enter into these agreements for sentence reductions, swifter resolution or cases or to gain agreement not to prosecute family members or others Suspect/ defendants enter into these agreements for sentence reductions, swifter resolution or cases or to gain agreement not to prosecute family members or others

22. It’s the Plea Agreements That make almost all of the difference between soling a crime or not. That make almost all of the difference between soling a crime or not.

23. The “take down” day is also a key part of successful investigations Coordinated effort to conduct interviews and searches simultaneously so that evidence is preserved and people don’t have opportunities to coordinate their stories Coordinated effort to conduct interviews and searches simultaneously so that evidence is preserved and people don’t have opportunities to coordinate their stories

24. Takedown day Arrest warrant

25. Takedown day Search warrant (home, office, computer)

26. Takedown day Seizure warrant (freeze assets, banking accounts, real estate)

27. Plea Agreements with cooperation make the difference between whether cases are made or not in complex crimes. Plea Agreements with cooperation make the difference between whether cases are made or not in complex crimes.

28. In the US: 1) Most cases are resolved through guilty pleas; 2) Of the cases that go to trial, most are tried to jurors and about 89 percent result in guilty verdicts in the federal system; 3) Historical disparity in prison terms for white collar versus violent crime or narcotics offenses; 4) Lot's of crowded prisons of varying degrees of security.

29. Cooperators of justice: Must be convinced of 3 ideas You are in serious trouble; You are in serious trouble; Only the prosecutor and law enforcement can help you; Only the prosecutor and law enforcement can help you; Your cooperation will not get you killed. Your cooperation will not get you killed.

30. Cooperation agreement Criminal – agrees to plead guilty; Criminal – agrees to plead guilty; Criminal – always will tell the truth; Criminal – always will tell the truth; Criminal – will commit no more crimes; Criminal – will commit no more crimes; Criminal - will meet with prosecutor at his demand; Criminal - will meet with prosecutor at his demand; Criminal - will testify in court. Criminal - will testify in court.

31. Consequences of violating Agreement If the agreement is violated, it is void (even if time has passed); If the agreement is violated, it is void (even if time has passed); Everything said can be used against criminal; Everything said can be used against criminal; Can also be charged with obstruction. Can also be charged with obstruction.

32. US law enforcement officers may present an opportunity to commit a crime as part of an investigation: 1) must have evidence that defendant pre- disposed to commit the crime; 2)usually use a cooperating defendant or information from a cooperating defendant 2)usually use a cooperating defendant or information from a cooperating defendant - to establish predisposition; and - to establish predisposition; and - to design a scenario that the defendant understands and is comfortable with - to design a scenario that the defendant understands and is comfortable with

33. US prosecutors and investigators may also follow or join in a crime in progress by introducing an under cover agent or cooperating defendant or by means including: by introducing an under cover agent or cooperating defendant or by means including: wire tapping phones without any participant awarewire tapping phones without any participant aware recording individual conversations by a participantrecording individual conversations by a participant installing bugs in public placesinstalling bugs in public places Seizing trashSeizing trash Placing gps devices on cars, boats, planesPlacing gps devices on cars, boats, planes

34. Undercover Operatives: 2 types Police officers under cover Criminals cooperating under plea agreements

39. All cases made through the use of plea and cooperation agreements – All cases made through the use of plea and cooperation agreements – A tool you now have in the CPC A tool you now have in the CPC