INTERNATIONAL INTERNATIONAL COOPERATIONCOOPERATION

Daniel H. ClamanDaniel H. ClamanSenior Trial AttorneySenior Trial Attorney

U.S. Department of JusticeU.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 AssistanceInformal versus Formal Assistance Multilateral Treaties GenerallyMultilateral Treaties Generally U.N. Convention against U.N. Convention against

CorruptionCorruption Assistance from the United StatesAssistance from the United States

PURPOSE AND LIMITATIONS

Formal RequestsFormal RequestsInformal RequestsInformal 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 RequestsFormal RequestsInformal RequestsInformal 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 International law enforcement contactscontacts– Law Enforcement Attaches Law Enforcement Attaches – Embassy personnelEmbassy personnel

Financial Intelligence Units (FIUs)Financial Intelligence Units (FIUs)– Investigative Lead InformationInvestigative Lead Information

Follow informal with formal…Follow informal with formal…

MYTH OR TRUTH?

NO TREATY NO TREATY NO HELPNO HELP

FORMAL MECHANISMS

Multilateral agreementsMultilateral agreements Bilateral Mutual Legal Assistance Bilateral Mutual Legal Assistance

TreatiesTreaties Letters RogatoryLetters Rogatory Extradition TreatiesExtradition Treaties

Often Depends on Foreign lawOften Depends on Foreign law

MULITLATERAL TREATIES United Nations ConventionsUnited Nations Conventions

– 1988 Drugs (Vienna)1988 Drugs (Vienna)– 1999 Terrorist Financing1999 Terrorist Financing– 2000 Organized Crime (Palermo)2000 Organized Crime (Palermo)– 2002 Corruption (Merida)2002 Corruption (Merida)

Inter-American ConventionsInter-American Conventions– 1992 Mutual Legal Assistance in Criminal 1992 Mutual Legal Assistance in Criminal

MattersMatters– 1996 Corruption1996 Corruption– TerrorismTerrorism

MUTUAL LEGAL ASSISTANCE UNDER THE UNCAC

OLD FORFEITURE LEGAL ASSISTANCE REGIME

Requested country eitherRequested country either–open own case open own case OROR

–enforce a foreign confiscation enforce a foreign confiscation judgmentjudgment

1988 Vienna Convention 1988 Vienna Convention 2000 Palermo Convention2000 Palermo Convention

NEW FORFEITURE LEGAL ASSISTANCE REGIME

Direct recovery Direct recovery without forfeiture without forfeiture (Art. 53)(Art. 53)

MUST have basis to provide MUST have basis to provide assistance (Art. 54)assistance (Art. 54)

Procedures for international Procedures for international cooperation (Art. 55)cooperation (Art. 55)

DIRECT RECOVERY - ARTICLE 53

Courts must be open for civil actionCourts must be open for civil action– Victim Country files civil suit to establish titleVictim Country files civil suit to establish title

RestitutionRestitution– Victim Country can be recognized for award of Victim Country can be recognized for award of

damages or compensationdamages or compensation Claimant in forfeiture proceedingsClaimant in forfeiture proceedings

– Victim country can be recognized as a Victim country can be recognized as a legitimate owner before final forfeiturelegitimate owner before final forfeiture

FRAMEWORK FOR FORFEITURE COOPERATION - ARTICLE 54

Provisional measuresProvisional measures– Be able to enforce a foreign restraint Be able to enforce a foreign restraint

orderorder– Freeze on evidence that a forfeiture Freeze on evidence that a forfeiture

order forthcomingorder forthcoming– Consider other options: arrest, chargeConsider other options: arrest, charge

If open own case domestic restraint If open own case domestic restraint (Art. 31)(Art. 31)

FRAMEWORK FOR FORFEITURE COOPERATION - ARTICLE 54

Confiscation/ForfeitureConfiscation/Forfeiture–Must be able to enforce a foreign Must be able to enforce a foreign

orderorder

–Must be able to open own caseMust be able to open own case

–Consider non-conviction based Consider non-conviction based forfeitureforfeiture

INTERNATIONAL COOPERATIONIN CONFISCATION - ARTICLE 55

On receipt of request, either:On receipt of request, either:– Enforce foreign judgment OREnforce foreign judgment OR

– Open own caseOpen own case Guidelines for what to include in requestGuidelines for what to include in request Deny request or lift provisional measures if:Deny request or lift provisional measures if:

– Sufficient evidence not providedSufficient evidence not provided

– De minimisDe minimis value value

– BUT provide opportunity to cure problem BUT provide opportunity to cure problem

DUAL CRIMINALITYARTICLE 46 (9)

Traditional exception to legal Traditional exception to legal assistanceassistance

Coercive measures, dual criminality Coercive measures, dual criminality still appliesstill applies

Non-coercive measure, provide Non-coercive measure, provide assistanceassistance– Unless de minimis, conflict with Unless de minimis, conflict with

national lawnational law

MAKING THE REQUEST

MINIMUM REQUIREMENTS FOR TREATY ASSISTANCE

Identify Authority making the requestIdentify Authority making the request Object and Nature of Investigation or Object and Nature of Investigation or

proceeding (including offenses) proceeding (including offenses) SUMMARY of Pertinent FactsSUMMARY of Pertinent Facts Precise Description of Assistance RequestedPrecise Description of Assistance Requested Identity, location, nationality, of people Identity, location, nationality, of people

involvedinvolved Purpose of requestPurpose of request

FORFEITURE REQUESTS

Description of property, including location Description of property, including location and value (where possible)and value (where possible)

Admissible Copy of Orders on Which Admissible Copy of Orders on Which Request BasedRequest Based

Statement of Notice provided if Statement of Notice provided if Enforcement of Judgment soughtEnforcement of Judgment sought

Statement that Forfeiture order is final and Statement that Forfeiture order is final and extent that enforcement is soughtextent that enforcement is sought

FORFEITURE ASSISTANCE

May be refused or provisional May be refused or provisional measures lifted ifmeasures lifted if– Evidence not providedEvidence not provided

– property of property of de minimisde minimis value value Opportunity to cure defect before Opportunity to cure defect before

provisional measures liftedprovisional measures lifted

Assistance from the United States of America

ASSISTANCE FROM THE U.S.

U.S. initiates its own forfeiture actionU.S. initiates its own forfeiture action– Criminal ForfeitureCriminal Forfeiture

– In RemIn Rem Forfeiture Forfeiture Enforce Foreign Forfeiture Enforce Foreign Forfeiture

JudgmentsJudgments Provisional Restraint MechanismsProvisional Restraint Mechanisms

ENFORCEMENT OF JUDGMENTS

Foreign Offense that would be Foreign Offense that would be Forfeitable Federal Violation if Forfeitable Federal Violation if Committed in the U.S.Committed in the U.S.

Treaty or AgreementTreaty or Agreement Attorney General CertificationAttorney General Certification Criminal and Criminal and in remin rem Judgments Judgments

28 U.S.C. § 246728 U.S.C. § 2467

ENFORCEMENT OF JUDGMENTS

Enforce Judgment UnlessEnforce Judgment Unless– System Incompatible with Due ProcessSystem Incompatible with Due Process– No personal jurisdictionNo personal jurisdiction– No subject matter jurisdictionNo subject matter jurisdiction– Insufficient notice to DefendantInsufficient notice to Defendant– Judgment obtained by fraudJudgment obtained by fraud

Court Bound by Factual Findings in Court Bound by Factual Findings in Foreign JudgmentForeign Judgment

PROVISIONAL MEASURES Mechanism will Depend on CircumstancesMechanism will Depend on Circumstances Foreign Arrest or Charge can be basis for Foreign Arrest or Charge can be basis for

immediate 30-day freezeimmediate 30-day freeze– Provide copy of charging documentProvide copy of charging document– Must provide additional evidenceMust provide additional evidence

Enforce foreign restraining orderEnforce foreign restraining order– Include specifics in orderInclude specifics in order

Based upon affidavitBased upon affidavit

MYTH OR TRUTH?

FEW COUNTRIES FEW COUNTRIES HELPHELP

BEFORE MAKING A REQUEST

Coordinate timing with criminal Coordinate timing with criminal investigation investigation

Leave time for other country to actLeave time for other country to act Contact foreign attaches at local Contact foreign attaches at local

embassies, Central Authority of embassies, Central Authority of other countryother country

Anticipate possibility of disclosureAnticipate possibility of disclosure

Daniel H. ClamanSenior Trial Attorney

Asset Forfeiture and Money Laundering Section

U.S. Department of JusticeCriminal Division (AFMLS)Washington, D.C. 20530

Tel. (202) 514-6340Fax (202) 514-5522

Daniel.Claman@usdoj.gov