INTERNATIONAL COOPERATION Daniel H. Claman Senior Trial Attorney U.S. Department of Justice

USD 1.5 to 5 billion USD 23 million to 1 billion USD 250 million or more USD 106 to 700 million USD 4 to 8 billion USD 3 to 14 billion USD 4.5 to 45 billion USD 1 to 2.8 billion USD 100 million

OVERVIEW  Informal versus Formal Assistance  Multilateral Treaties Generally  U.N. Convention against Corruption  Assistance from the United States

PURPOSE AND LIMITATIONS Formal Requests Informal Requests Information and Investigation Not evidence Non-compulsory measures Use in Court may be prohibited May need authentication Evidence Compulsory Action Certification of Authenticity Rule of Specialty Covered Illicit Conduct

WHAT TO ASK FOR Formal Requests Informal Requests Interview Witnesses Visual Surveillance Public Record Search Suspicious Activity Report Information Open investigation Unofficial public documents Formal Service Sworn Testimony Financial Records Certified Documents Nonconsensual Search Restraint Enforce Judgment Lift restraint Confidentiality

INFORMAL MECHANISMS  International law enforcement contacts –Law Enforcement Attaches –Embassy personnel  Financial Intelligence Units (FIUs) –Investigative Lead Information  Follow informal with formal…

MYTH OR TRUTH? NO TREATY NO HELP

FORMAL MECHANISMS  Multilateral agreements  Bilateral Mutual Legal Assistance Treaties  Letters Rogatory  Extradition Treaties Often Depends on Foreign law

MULITLATERAL TREATIES  United Nations Conventions –1988 Drugs (Vienna) –1999 Terrorist Financing –2000 Organized Crime (Palermo) –2002 Corruption (Merida)  Inter-American Conventions – 1992 Mutual Legal Assistance in Criminal Matters – 1996 Corruption –Terrorism

MUTUAL LEGAL ASSISTANCE UNDER THE UNCAC

OLD FORFEITURE LEGAL ASSISTANCE REGIME  Requested country either –open own case OR –enforce a foreign confiscation judgment  1988 Vienna Convention  2000 Palermo Convention

NEW FORFEITURE LEGAL ASSISTANCE REGIME  Direct recovery without forfeiture (Art. 53)  MUST have basis to provide assistance (Art. 54)  Procedures for international cooperation (Art. 55)

DIRECT RECOVERY - ARTICLE 53  Courts must be open for civil action –Victim Country files civil suit to establish title  Restitution –Victim Country can be recognized for award of damages or compensation  Claimant in forfeiture proceedings –Victim country can be recognized as a legitimate owner before final forfeiture

FRAMEWORK FOR FORFEITURE COOPERATION - ARTICLE 54  Provisional measures –Be able to enforce a foreign restraint order –Freeze on evidence that a forfeiture order forthcoming –Consider other options: arrest, charge  If open own case domestic restraint (Art. 31)

FRAMEWORK FOR FORFEITURE COOPERATION - ARTICLE 54  Confiscation/Forfeiture –Must be able to enforce a foreign order –Must be able to open own case –Consider non-conviction based forfeiture

INTERNATIONAL COOPERATION IN CONFISCATION - ARTICLE 55  On receipt of request, either: –Enforce foreign judgment OR –Open own case  Guidelines for what to include in request  Deny request or lift provisional measures if: –Sufficient evidence not provided –De minimis value –BUT provide opportunity to cure problem

DUAL CRIMINALITY ARTICLE 46 (9)  Traditional exception to legal assistance  Coercive measures, dual criminality still applies  Non-coercive measure, provide assistance –Unless de minimis, conflict with national law

MAKING THE REQUEST

MINIMUM REQUIREMENTS FOR TREATY ASSISTANCE  Identify Authority making the request  Object and Nature of Investigation or proceeding (including offenses)  SUMMARY of Pertinent Facts  Precise Description of Assistance Requested  Identity, location, nationality, of people involved  Purpose of request

FORFEITURE REQUESTS  Description of property, including location and value (where possible)  Admissible Copy of Orders on Which Request Based  Statement of Notice provided if Enforcement of Judgment sought  Statement that Forfeiture order is final and extent that enforcement is sought

FORFEITURE ASSISTANCE  May be refused or provisional measures lifted if – Evidence not provided – property of de minimis value  Opportunity to cure defect before provisional measures lifted

Assistance from the United States of America

ASSISTANCE FROM THE U.S.  U.S. initiates its own forfeiture action –Criminal Forfeiture –In Rem Forfeiture  Enforce Foreign Forfeiture Judgments  Provisional Restraint Mechanisms

ENFORCEMENT OF JUDGMENTS  Foreign Offense that would be Forfeitable Federal Violation if Committed in the U.S.  Treaty or Agreement  Attorney General Certification  Criminal and in rem Judgments 28 U.S.C. § 2467

ENFORCEMENT OF JUDGMENTS  Enforce Judgment Unless –System Incompatible with Due Process –No personal jurisdiction –No subject matter jurisdiction –Insufficient notice to Defendant –Judgment obtained by fraud  Court Bound by Factual Findings in Foreign Judgment

PROVISIONAL MEASURES  Mechanism will Depend on Circumstances  Foreign Arrest or Charge can be basis for immediate 30-day freeze –Provide copy of charging document –Must provide additional evidence  Enforce foreign restraining order –Include specifics in order  Based upon affidavit

REQUESTS TO THE U.S. FOR EVIDENCE  Search/Seize Evidence –Affidavit establishing Probable Cause that Evidence  Relevant to investigation, and  Can be found at that location –Full Description of Evidence to Seize

MYTH OR TRUTH? FEW COUNTRIES HELP

BEFORE MAKING A REQUEST  Coordinate timing with criminal investigation  Leave time for other country to act  Contact foreign attaches at local embassies, Central Authority of other country  Anticipate possibility of disclosure

Daniel H. Claman Senior Trial Attorney Asset Forfeiture and Money Laundering Section U.S. Department of Justice Criminal Division (AFMLS) Washington, D.C Tel. (202) Fax (202)