Building International Cases - law enforcement

Tools for Successful Investigations

Almost daily, news stories feature fugitives who avoid arrest by moving from country to country, narcotics organizations that launder their ill-gotten gains in spite of a network of national laws, as well as parents who move children from one country to another in violation of custody orders. Criminals seem to cross international borders more rapidly and frequently than ever before, and the police seem to be at a disadvantage.

Law enforcement officials must conduct quality investigations in their own jurisdictions, and they must be prepared to work in almost any other jurisdiction of the world, as well. By developing a better understanding of international investigative techniques and becoming more aware of the myriad problems that could occur with investigations abroad, officers may find more of their investigations proceeding to successful conclusions.

Language problems top the list of the many obstacles to U.S. investigations abroad, with organizational differences among law enforcement agencies coming a close second. Treaties dating from as far back as the 1800s, with varying requirements for each country, also may apply. Inherent limitations in U.S. laws and international laws that differ among countries also create difficulties. For example, some countries allow foreign police officials to enter their nations to interview voluntary witnesses and obtain documents from cooperative individuals or firms. Other countries, however, regard it as a violation of their sovereignty, or even consider it a crime, if foreign police conduct investigations in search of evidence, even if only done by telephone.

How can law enforcement officers negotiate these foreign obstacles? Whether they use informal, police-to-police assistance or more formal procedures, law enforcement officers must become familiar with the methods available to gather evidence abroad and bring international criminals to justice.

Police-to-Police Assistance

Police-to-police assistance covers any investigative work that officers legally can perform in their own countries, without a court order, on behalf of foreign police. Just as police from one jurisdiction may help those in another throughout the United States, police in other countries may provide assistance, depending on their countries' laws. Thus, in some countries, law enforcement organizations can interview voluntary witnesses and conduct other routine investigation with little difficulty. In some instances, particularly if fugitives already have been convicted, foreign law enforcement agencies may be able to expel fugitives, or stop them from entering the country altogether and send them back to the country from which they departed.

The police-to-police assistance available from other countries may depend on the type of criminal case involved. Most countries require "dual criminality," where their police can assist police of another country only if the conduct in question constitutes a crime in both countries. For instance, a dual-criminality country whose law has not yet made laundering of proceeds from extortion, fraud, or other offenses illegal cannot help U.S. law enforcement investigate these types of crime. Generally, if police in another country cannot assist with certain types of crime, they make it known at the onset of the investigation.

For a police-to-police assistance request, state and local law enforcement simply can forward a request through the International Criminal Police Organization, more commonly known as INTERPOL. Federal agents can use INTERPOL or send a request through their agency's representative in the U.S. embassy. The attaches from the FBI, DEA, and U.S. Customs Service, as well as agents from the U.S. Secret Service and the U.S. Department of State, posted at various U.S. embassies abroad, can help both national and international officers obtain international police-to-police assistance. These agencies overcome the language barriers and can best determine the most appropriate authority to provide the assistance needed. However, if the foreign country's police can help with an investigation but not on a police-to-police basis, agencies can use more formal procedures-specifically, mutual assistance, multilateral treaties, letters rogatory, executive agreements, and extradition.

Mutual Assistance

In the United States, mutual assistance refers to the act of obtaining evidence through another country's compulsory process (e.g., via subpoena, search warrant, or court order). To succeed, mutual assistance requests to other countries need the local prosecutor's active involvement. The U.S. Department of Justice, Criminal Division, Office of International Affairs (OIA) also must participate. Trial attorneys from the OIA handle all U.S. requests for foreign evidence requiring compulsory process in the requested country. This office also coordinates the collection of evidence in the United States for other countries. Finally, OIA's personnel can advise prosecutors and investigators from the United States on how best to succeed with their evidence requests to foreign countries.

The types of mutual assistance available from various countries depend on each country's laws and on whether the United States has a bilateral mutual legal assistance treaty (MLAT) or other treaty relationship with a specific country. The United States currently has 19 MLATs, with an additional 25 negotiated and awaiting ratification.

An MLAT clearly defines the obligations of the parties, to include the offenses covered, which authority within each country can make an MLAT request, how an agency must transmit the request, and the scope of the assistance that the parties will provide one another. An MLAT may obligate one treaty participant to use the requesting country's legal procedures in executing a request. For example, an MLAT can provide that the requested country will authenticate documents (i.e., certify them) using the requesting country's procedures. This can facilitate the admissibility of relevant foreign documents, for instance, Swiss bank records in a U.S. trial. Terms of the MLATs often help agencies obtain information from foreign banks that may have more restrictive mechanisms on account information. Additionally, an MLAT may provide assurances of confidentiality, admissibility of evidence, and opportunities for both sides to confront the witnesses for depositions. An MLAT may provide for the transfer of witnesses who are in custody, approve the presence of defense lawyers at trial testimony depositions, address the confidentiality of certain requests, and specify how the parties should pay for any extraordinary costs associated with an MLAT request.

The MLAT request explains the facts of the case as they are known to U.S. authorities and seeks only evidence clearly relevant to those facts. The request also identifies the subjects or defendants; lists names and complete contact/identification information for witnesses, banks, or companies in the foreign country; and specifies the particular procedures the country should follow while executing the request. In general, the more specific the request, the more detailed the response.

The OIA signs the MLAT request and transmits it with a translation, if necessary, directly to the central authority of the requested country, usually in the Ministry of Justice. The requested country sends the evidence to the OIA, which forwards it to the prosecutor. Upon receipt, agencies making the request should immediately compare the evidence with their request to verify that it is complete and to determine if they need to submit a follow-up request. Because OIA does not assist with translations, the requester bears the responsibility to have evidence in a foreign language translated.

Multilateral Treaties

Where an MLAT involves two countries, a multilateral treaty or convention binds the several countries that ratify it. The procedures and contents of a multilateral treaty request are similar to an MLAT request. The officer and the prosecutor work through the OIA, and the requested country is obligated to assist if the request complies with the treaty.

In drug cases, a multilateral treaty commonly called the Vienna Convention may apply. More than 130 countries, including the United States, have ratified this treaty. The Vienna Convention covers not only drug offenses but associated money laundering and asset forfeiture cases, as well. However, a country's assistance will depend on their laws in these areas.

The Hague Convention on the Civil Aspect of International Child Abduction may prove useful to investigators in parental kidnapping cases. It provides the means for returning a child to the custodial parent if the child has been wrongfully removed from the United States and taken to, or retained in, another country that also has signed this convention. The OIA and the State Department's Office of Citizens Consular Services represent the best sources of guidance in using the provisions of this convention.

Letters Rogatory

If police need evidence from a country that has not yet established an MLAT with the United States or for an offense that the appropriate MLAT or convention does not cover, they must fall back on an ancient international procedure called a letter rogatory. This "letter" from a court requests that a court in another country use its compulsory process to obtain evidence needed for a criminal or civil matter. Although the requested country has no obligation to assist, it usually does so as a matter of comity (i.e., an international favor). Some countries will only execute foreign letters rogatory if the requesting country can reciprocate. Typically, the letter rogatory is executed using the requested country's procedure for gathering evidence. For instance, when obtaining documents for the. United States, authorities from a foreign country may seize them from a bank as they would for use in their own criminal investigations. U.S. authorities generally would use a subpoena.

U.S. prosecutors work with OIA to draft the letter rogatory in accordance with the requested country's requirements. Because a letter rogatory is a request by a court, the prosecutor must present it to a U.S. judge or magistrate for signature with a motion, a memorandum in support, and a proposed order. If the letter must be translated, the prosecutor's office must incur this expense.

OIA transmits the letter rogatory through the State Department and the appropriate U.S. embassy for delivery to the requested country's Ministry of Foreign Affairs. This office then relays the letter to its Ministry of Justice, which forwards it to the prosecutor and police, who execute it. Evidence obtained in the execution of a letter rogatory returns to the United States through the same channels. In most countries, letters rogatory can take 6 months or longer to produce requested evidence, making them less efficient and generally slower than MLAT requests.

Executive Agreements

In some cases, the police can use executive agreements to obtain evidence from specific countries. For example, the United States has an executive agreement with Colombia that defines terms when evidence will be shared. Other agreements address tax, customs, and asset-sharing issues. The procedures and contents of requests under executive agreements are similar to MLAT requests but remain more limited in scope.

Because of the time involved in requesting evidence under any of these agreements, officers should request foreign evidence as soon as possible. Congress addressed this time-management issue in the Comprehensive Crime Control Act of 1984 and created Title 18, U.S. Code, Section 3292. This law allows a court to extend the statute of limitations for up to 3 years to secure evidence from a foreign country. This only applies if the United States has made an official request to that country, and the country reasonably appears to have evidence of an offense. After indictment, however, Title 18, U.S. Code, Section 3 161(h)(9) allows a court to exclude only up to 1 year of time to obtain foreign evidence under the Speedy Trial Act.

Extradition

Today, it seems that wanted persons travel from country to country with virtually the same ease that criminals travel from state to state. This poses unique challenges to law enforcement officers trying to bring criminals to justice. While such organizations as INTERPOL can disseminate wanted-person information quickly, the actual legal process of arresting and returning fugitives can become lengthy and complex.

The term "provisional arrest" applies to the mechanism for immediate arrest pending submission of a formal extradition request and supporting documents. This is reserved for urgent cases and imposes time limits as well as the possibility of release on bail for the subject.

Extradition, on the other hand, is the return of fugitives to the jurisdiction in which they are wanted. This is a formal process governed by treaty and normally involves the U.S. Department of State and OIA. Treaty provisions may vary from country to country, and not all domestic law violations are subject to extradition. For example, some treaties became effective in the late 1800s and do not address such offenses as wire fraud, mail fraud, or parental kidnapping. Agencies should coordinate with OIA to determine the applicability of treaties in a given case.

Formal extradition requests differ from provisional arrest requests in a manner similar to the difference between domestic criminal trial cases that require proof beyond a reasonable doubt and arrest warrant affidavits that require probable cause. The agency must present the extradition request in writing and needs certified copies of arrest warrants, charging documents, and judgments and convictions. It also must produce an affidavit from the prosecutor concerning the statutes involved, identification information, and evidence in support of the extradition request. OIA assists in the preparation of documents and their transmission through diplomatic channels.

The requesting jurisdiction pays for translations and travel related to the return of the fugitive and other related matters. The State Department translates the extradition request and currently charges $204 per 1,000 words. State and local jurisdictions also must pay for round-trip travel and per diem for two U.S. marshals to escort the fugitive back to the United States and the fugitive's one-way airfare and meals, as well. In a few countries, the United States also must retain a lawyer to present the extradition request.

In most cases, extradition imposes a "rule of specialty" on the government. This means that subjects may be tried only for the crimes for which they were extradited. In addition, countries may not extradite fugitives for crimes for which they already have been prosecuted in another country. Speedy trial problems may arise and must be addressed properly in the domestic courts.

Investigators should think of alternatives to extradition, such as deportation or exclusion from the other nation under immigration laws. OIA can assist in exploring this alternative, which it often coordinates with the liaison at the country's embassy in the United States. Forcible return, known as extraordinary rendition, also may be an option but poses special considerations. Some potential adverse consequences exist, such as civil and criminal liability imposed by the country from which the fugitive is removed, that may actually result in prosecution of U.S. law enforcement officers. The U.S. Department of Justice prohibits forcible returns without prior approval by senior U.S. government officials.

As an alternative to extradition, the United States may be able to transfer prosecution to the countries in which the defendants reside. Because of the expense and logistical difficulties, however, agencies may want to use this option only as a last resort.

Conclusion

Investigations beyond the borders of the United States are well within the capabilities of most law enforcement agencies. In order to develop more thorough cases, officers and prosecutors must pursue cases and criminals wherever leads take the investigation. International borders should not obstruct justice. Officers should become familiar with the mechanisms that exist to obtain evidence and apprehend fugitives abroad.

The ability to deal effectively with other nations grows in importance daily. Using the tools currently available, U.S. law enforcement officers have the ability to reach around the world to enforce the law.

The author thanks Sarah McKee, OIA trial attorney, for her invaluable assistance in preparing this article.

COPYRIGHT 1999 Federal Bureau of Investigation
COPYRIGHT 2004 Gale Group