The Second Circuit held in United States v. Allen, an appeal arising from the first U.S. prosecution in connection with the LIBOR manipulation scandal, that it violates a defendants Fifth Amendment privilege against self-incrimination to present an investigating grand or a trial jury with testimony that the defendant was compelled to give to foreign officials, regardless of whether the compelled testimony was presented directly or through another witness.

On July 19, the U.S. Court of Appeals for the Second Circuit vacated the conviction of two former London-based bankers, Anthony Allen and Anthony Conti, who were convicted in October 2015 on multiple counts of bank and wire fraud in connection with a scheme to manipulate the London Interbank Offered Rate (LIBOR). See United States v. Allen, Crim. No. 16-939 (2d Cir. July 19, 2017). Witnesses for the U.S. Department of Justice (DOJ) before both the grand and trial juries had been exposed to inculpatory testimony that the defendants were compelled to give against themselves by the UK government pursuant to UK law, and the Court of Appeals held that using that compelled testimony violated the defendants Fifth Amendment right against self-incrimination. The Second Circuit further held that the DOJ failed to carry its heavy burden under the U.S. Supreme Courts decision in United States v. Kastigar, 406 U.S. 441 (1972), to show that the testimony introduced before the grand and trial juries did not derive from the defendants compelled testimony. Because the prosecution failed to carry its Kastigar burden, and using the compelled testimony was not harmless error, the Second Circuit reversed the convictions and dismissed the indictments.

Alleged LIBOR Manipulation

Allen and Conti worked at Coperatieve Centrale Raiffeisen-Boerenleenbank B.A. (Rabobank), a Dutch bank. During the 2000s, Rabobank was one of 16 banks that submitted its borrowing rates for U.S. dollars and Japanese yen on a daily basis to the British Bankers Association (BBA), the entity that calculated the LIBOR. The LIBOR is a series of daily benchmark rates at which banks can borrow funds in various currencies for various time periods. For each currency for which it calculated the LIBOR, the BBA accepted rates the banks submitted, discarded certain high and low submissions, and averaged the remaining submissions. Many financial transactions, including interest rate swaps, are tied to the LIBOR on a particular date, and those transactions are either profitable or not depending on the LIBOR in the relevant currency for the relevant time period on the relevant date, called the fixing date.

Allen and Conti each had, at various times and with varying frequency, responsibility for Rabobanks rate submissions to the BBA. Neither Rabobank nor the UK government had any policies concerning the submission of rates used to derive the LIBOR. Like a number of other banks that submitted their borrowing rates to the BBA, Rabobank was a party to a large number of LIBOR-tied transactions.

The prosecutions evidence at trial, which the Court of Appeals reviewed in detail, showed that the defendants received requests from Rabobank traders who had taken LIBOR-tied positions in transactions that would either make or lose money for the bank depending on the LIBOR. The Court of Appeals wrote, The Governments theory of the case was that these trader requests were dictated by the traders (and thus Rabobanks) interest in having LIBOR be higher or lower on particular dates based on the transactions that the trader had entered or positions they held.

The defendants conceded that it was inappropriate to base Rabobanks LIBOR submissions on rates that would benefit Rabobank, rather than on market-based evidence of the range of reasonable rates that fairly represented the rate at which Rabobank could borrow in dollars or yen for various intervals on that day. The defendants position at trial was that, although they received requests from traders for higher or lower submissions to the BBA, they did not honor those requests.

Financial Conduct Authoritys Investigation and Aborted Prosecution

The UKs Financial Conduct Authority (FCA) worked in parallel with officials from the DOJ to investigate allegations of LIBOR manipulation and to interview individuals, including the defendants, in 2013. It was undisputed in the proceedings before the Court of Appeals that defendants Allen and Conti were compelled, on pain of imprisonment, to testify before the FCA. The FCA offered the defendants direct use immunity for their compelled testimony, but not derivative use immunity, according to the court. In other words, the FCA could not use the defendants statements against them at trial (i.e., no direct use), but could introduce evidence against them that it obtained based on their compelled statements (i.e., derivative use).

In contrast, when the DOJ seeks to compel a witness to testify over the witnesss invocation of his or her Fifth Amendment privilege against self-incrimination, the immunity order that is entered confers both direct and derivative use immunity. To avoid having the DOJs LIBOR investigation tainted by compelled testimony, the DOJ and the FCA interrogated witnesses on different days, with the DOJ interviewing first.

The FCA and the DOJ also investigated a Rabobank employee with rate submission responsibilities, Paul Robson, whom the FCA later charged with criminal conduct for his role in manipulating the LIBOR. As part of its pre-trial process in the UK, the FCA disclosed to Robson the compelled testimony that Allen and Conti had given. The Second Circuit stated that Robson closely reviewed that testimony, annotating it and taking several pages of notes. The FCA later abandoned its prosecution of Robson, and the DOJ picked up where the FCA left off.

In April 2014, a grand jury in the Southern District of New York indicted Robson and two other individuals but not Allen and Conti charging them with wire fraud, among other things. Robson proffered, signed a cooperation agreement, and pled guilty in summer 2014. Although Robson did not testify before the grand jury, information he provided to the DOJ was presented to the grand jury through an FBI agent. The grand jury subsequently indicted Allen and Conti, charging them with wire and bank fraud charges.

Allen and Conti waived extradition and filed a motion under Kastigar to suppress Robsons testimony at trial. The trial court deferred the Kastigar hearing until after trial. Robson testified at trial, and the jury convicted the defendants on all charges.

At the post-trial Kastigar hearing, Robson explained that he had been exposed to the defendants compelled testimony before the FCA. The trial court found, however, that Robsons statement that he had independent knowledge of the facts he presented at trial (and that had been presented to the grand jury through an FBI agent) was an independent source within the meaning of Kastigar.

Court of Appeals Holds Fifth Amendment Self-Incrimination Privilege Applies to Foreign-Compelled Testimony

The Court of Appeals held that the Fifth Amendments privilege against self-incrimination requires that a defendants statement to a foreign government official be voluntary before it can be admitted in a U.S. trial. The Second Circuit emphasized repeatedly that the self-incrimination privilege is a personal trial right that is absolute. As a result, in the courts opinion, the self-incrimination privilege applies to bar the admission in U.S. trials of a defendants compelled statements to a foreign government official even when, as in this case, the foreign government official acted pursuant to the foreign nations legal process in obtaining those statements. In short, if a sovereign power compelled the defendant to testify under the cruel trilemma of self-accusation, perjury or contempt, the statement cannot be used in a U.S. court to indict the defendant or obtain a conviction. The Court of Appeals was unwilling to countenance the DOJs position in the case, which would remove all impediment to introducing the defendants foreign compelled testimony, as in, the court wrote, Your honor, we offer Government Exhibit 1, the defendants compelled testimony.

The Second Circuit considered misplaced the U.S. governments concern that a foreign government might attempt to sabotage U.S. prosecutions by compelling and then broadcasting a defendants testimony to potential witnesses. The court quoted a speech by former Assistant Attorney General for the Criminal Division Leslie Caldwell, who spoke of the DOJs efforts to coordinate with its counterparts abroad in investigating and prosecuting crime. The court noted that the DOJ was aware of its burden to avoid using compelled testimony as reflected by the interview scheduling system used in this case. The court also left open the possibility that there may be a different result if the foreign power appeared to be attempting to undermine a U.S. prosecution, noting that it would call into question whether the testimony obtained was really involuntary.

Having defined the defendants Fifth Amendment rights, the court concluded that the government violated their privilege against self-incrimination by introducing Robsons testimony at trial and to the grand jury through an FBI agent. Relying on Kastigar, the court explained that the privilege against self-incrimination applies not only to the testimony itself but to evidence derived from that testimony. The court noted that, when a defendant has been compelled to testify and is later prosecuted, the trial court will convene a hearing, a so-called Kastigar hearing, at which the prosecution must carry the heavy, albeit not insurmountable, burden that the evidence it will introduce was derived from legitimate independent sources. Typically, the prosecution meets this burden with canned testimony, that is, testimony the witness gave before he or she was tainted by exposure to the compelled testimony.

At the Kastigar hearing before the trial court in the Allen case, the exact opposite happened: Robson admitted that his testimony to the FCA was very different from the testimony he gave in the United States after reviewing the testimony of Allen and Conti. The Second Circuit held that the Kastigar hearing actually proved Robson had been tainted by the defendants compelled testimony to the FCA. The court concluded that the presentation of the tainted evidence to the grand and trial juries was not harmless, and it both vacated the conviction and dismissed the indictment against the defendants.

Implications

The Second Circuit explained that cross-border prosecutions are on the rise and observed that the DOJ is detailing its prosecutors to foreign investigators, including INTERPOL and the FCA. The court understood that, in the governments view, witness testimony is often the key to unraveling international financial crime. Although the court would not presume to know exactly what this brave new world of international criminal enforcement will entail, it was certain that these developments abroad need not affect the fairness of our trials at home.

Indeed, earlier this year, the DOJs Antitrust Division issued a Division Update, explaining that international cooperation on investigations of cartels was a top a priority and it was exploring bi-, tri- and multilateral agreements to foster greater international cooperation. Additionally, at a recent speech in Brazil, Acting Principal Deputy Assistant Attorney General for the Criminal Division, Trevor N. McFadden stated that cooperation with our foreign partners has become a hallmark of our work and observed that reciprocity in information sharing is a vital tool in the modern prosecutors toolbox.

Indeed, recent settlements and investigations show that the DOJ is actively coordinating its efforts with the FCA and other foreign investigators. For example, earlier this year, State Street Corporation announced that it had reached a settlement with the DOJ concerning allegations it overcharged certain clients, an allegation first disclosed to the FCA in 2011. Also, in April, it was reported that the DOJ and the FCA are collaborating in an investigation into whether individuals at Barclays Bank engaged in civil or criminal misconduct in attempting to unmask a whistleblower. And the U.S. Attorneys Office for the Southern District of New York, the office that prosecuted Allen and Conti, announced late last year that it had charged several individuals with wire and securities fraud, identify theft and computer hacking following an investigation conducted in concert with Lahav 433, the cyber unit of the Israeli National Police, which, like the FCA, can legally compel witness testimony.

This international cooperation also is occurring among government regulators with civil remedies at their disposal. For example, when the SEC announced the filing of a Foreign Corrupt Practices Act complaint against executives at investment firm Och-Ziff Capital Management Group in January 2017, the SEC thanked the FCA and financial regulators in Guernsey, Jersey, Malta, Cyprus, Gibraltar and Switzerland for assisting in the investigation that led to the complaint.

Given the increase in cross-border investigations involving cooperation between U.S. and foreign law enforcement and regulatory authorities, practitioners representing defendants who have been interrogated abroad should investigate the possibility that compelled testimony was disseminated to witnesses the DOJ put before the grand jury or will call at trial. While the fact pattern in Allen is somewhat unique, there is a significant tactical advantage to identifying whether any witnesses were exposed to the compelled testimony and forcing the prosecution to carry its heavy burden under Kastigar of showing its evidence is untainted.

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Fifth Amendment Prohibits Use of Compelled Foreign Testimony in ... - JD Supra (press release)

The Second Circuit held in United States v. Allen, an appeal arising from the first U.S. prosecution in connection with the LIBOR manipulation scandal, that it violates a defendants Fifth Amendment privilege against self-incrimination to present an investigating grand or a trial jury with testimony that the defendant was compelled to give to foreign officials, regardless of whether the compelled testimony was presented directly or through another witness.

On July 19, the U.S. Court of Appeals for the Second Circuit vacated the conviction of two former London-based bankers, Anthony Allen and Anthony Conti, who were convicted in October 2015 on multiple counts of bank and wire fraud in connection with a scheme to manipulate the London Interbank Offered Rate (LIBOR). See United States v. Allen, Crim. No. 16-939 (2d Cir. July 19, 2017). Witnesses for the U.S. Department of Justice (DOJ) before both the grand and trial juries had been exposed to inculpatory testimony that the defendants were compelled to give against themselves by the UK government pursuant to UK law, and the Court of Appeals held that using that compelled testimony violated the defendants Fifth Amendment right against self-incrimination. The Second Circuit further held that the DOJ failed to carry its heavy burden under the U.S. Supreme Courts decision in United States v. Kastigar, 406 U.S. 441 (1972), to show that the testimony introduced before the grand and trial juries did not derive from the defendants compelled testimony. Because the prosecution failed to carry its Kastigar burden, and using the compelled testimony was not harmless error, the Second Circuit reversed the convictions and dismissed the indictments.

Alleged LIBOR Manipulation

Allen and Conti worked at Coperatieve Centrale RaiffeisenBoerenleenbank B.A. (Rabobank), a Dutch bank. During the 2000s, Rabobank was one of 16 banks that submitted its borrowing rates for U.S. dollars and Japanese yen on a daily basis to the British Bankers Association (BBA), the entity that calculated the LIBOR. The LIBOR is a series of daily benchmark rates at which banks can borrow funds in various currencies for various time periods. For each currency for which it calculated the LIBOR, the BBA accepted rates the banks submitted, discarded certain high and low submissions, and averaged the remaining submissions. Many financial transactions, including interest rate swaps, are tied to the LIBOR on a particular date, and those transactions are either profitable or not depending on the LIBOR in the relevant currency for the relevant time period on the relevant date, called the fixing date.

Allen and Conti each had, at various times and with varying frequency, responsibility for Rabobanks rate submissions to the BBA. Neither Rabobank nor the UK government had any policies concerning the submission of rates used to derive the LIBOR. Like a number of other banks that submitted their borrowing rates to the BBA, Rabobank was a party to a large number of LIBOR-tied transactions.

The prosecutions evidence at trial, which the Court of Appeals reviewed in detail, showed that the defendants received requests from Rabobank traders who had taken LIBOR-tied positions in transactions that would either make or lose money for the bank depending on the LIBOR. The Court of Appeals wrote, The Governments theory of the case was that these trader requests were dictated by the traders (and thus Rabobanks) interest in having LIBOR be higher or lower on particular dates based on the transactions that the trader had entered or positions they held.

The defendants conceded that it was inappropriate to base Rabobanks LIBOR submissions on rates that would benefit Rabobank, rather than on market-based evidence of the range of reasonable rates that fairly represented the rate at which Rabobank could borrow in dollars or yen for various intervals on that day. The defendants position at trial was that, although they received requests from traders for higher or lower submissions to the BBA, they did not honor those requests.

Financial Conduct Authoritys Investigation and Aborted Prosecution

The UKs Financial Conduct Authority (FCA) worked in parallel with officials from the DOJ to investigate allegations of LIBOR manipulation and to interview individuals, including the defendants, in 2013. It was undisputed in the proceedings before the Court of Appeals that defendants Allen and Conti were compelled, on pain of imprisonment, to testify before the FCA. The FCA offered the defendants direct use immunity for their compelled testimony, but not derivative use immunity, according to the court. In other words, the FCA could not use the defendants statements against them at trial (i.e., no direct use), but could introduce evidence against them that it obtained based on their compelled statements (i.e., derivative use).

In contrast, when the DOJ seeks to compel a witness to testify over the witnesss invocation of his or her Fifth Amendment privilege against self-incrimination, the immunity order that is entered confers both direct and derivative use immunity. To avoid having the DOJs LIBOR investigation tainted by compelled testimony, the DOJ and the FCA interrogated witnesses on different days, with the DOJ interviewing first.

The FCA and the DOJ also investigated a Rabobank employee with rate submission responsibilities, Paul Robson, whom the FCA later charged with criminal conduct for his role in manipulating the LIBOR. As part of its pre-trial process in the UK, the FCA disclosed to Robson the compelled testimony that Allen and Conti had given. The Second Circuit stated that Robson closely reviewed that testimony, annotating it and taking several pages of notes. The FCA later abandoned its prosecution of Robson, and the DOJ picked up where the FCA left off.

In April 2014, a grand jury in the Southern District of New York indicted Robson and two other individuals but not Allen and Conti charging them with wire fraud, among other things. Robson proffered, signed a cooperation agreement, and pled guilty in summer 2014. Although Robson did not testify before the grand jury, information he provided to the DOJ was presented to the grand jury through an FBI agent. The grand jury subsequently indicted Allen and Conti, charging them with wire and bank fraud charges.

Allen and Conti waived extradition and filed a motion under Kastigar to suppress Robsons testimony at trial. The trial court deferred the Kastigar hearing until after trial. Robson testified at trial, and the jury convicted the defendants on all charges.

At the post-trial Kastigar hearing, Robson explained that he had been exposed to the defendants compelled testimony before the FCA. The trial court found, however, that Robsons statement that he had independent knowledge of the facts he presented at trial (and that had been presented to the grand jury through an FBI agent) was an independent source within the meaning of Kastigar.

Court of Appeals Holds Fifth Amendment Self-Incrimination Privilege Applies to Foreign-Compelled Testimony

The Court of Appeals held that the Fifth Amendments privilege against self-incrimination requires that a defendants statement to a foreign government official be voluntary before it can be admitted in a U.S. trial. The Second Circuit emphasized repeatedly that the self-incrimination privilege is a personal trial right that is absolute. As a result, in the courts opinion, the self-incrimination privilege applies to bar the admission in U.S. trials of a defendants compelled statements to a foreign government official even when, as in this case, the foreign government official acted pursuant to the foreign nations legal process in obtaining those statements. In short, if a sovereign power compelled the defendant to testify under the cruel trilemma of self-accusation, perjury or contempt, the statement cannot be used in a U.S. court to indict the defendant or obtain a conviction. The Court of Appeals was unwilling to countenance the DOJs position in the case, which would remove all impediment to introducing the defendants foreign compelled testimony, as in, the court wrote, Your honor, we offer Government Exhibit 1, the defendants compelled testimony.

The Second Circuit considered misplaced the U.S. governments concern that a foreign government might attempt to sabotage U.S. prosecutions by compelling and then broadcasting a defendants testimony to potential witnesses. The court quoted a speech by former Assistant Attorney General for the Criminal Division Leslie Caldwell, who spoke of the DOJs efforts to coordinate with its counterparts abroad in investigating and prosecuting crime. The court noted that the DOJ was aware of its burden to avoid using compelled testimony as reflected by the interview scheduling system used in this case. The court also left open the possibility that there may be a different result if the foreign power appeared to be attempting to undermine a U.S. prosecution, noting that it would call into question whether the testimony obtained was really involuntary.

Having defined the defendants Fifth Amendment rights, the court concluded that the government violated their privilege against self-incrimination by introducing Robsons testimony at trial and to the grand jury through an FBI agent. Relying on Kastigar, the court explained that the privilege against self-incrimination applies not only to the testimony itself but to evidence derived from that testimony. The court noted that, when a defendant has been compelled to testify and is later prosecuted, the trial court will convene a hearing, a so-called Kastigar hearing, at which the prosecution must carry the heavy, albeit not insurmountable, burden that the evidence it will introduce was derived from legitimate independent sources. Typically, the prosecution meets this burden with canned testimony, that is, testimony the witness gave before he or she was tainted by exposure to the compelled testimony.

At the Kastigar hearing before the trial court in the Allen case, the exact opposite happened: Robson admitted that his testimony to the FCA was very different from the testimony he gave in the United States after reviewing the testimony of Allen and Conti. The Second Circuit held that the Kastigar hearing actually proved Robson had been tainted by the defendants compelled testimony to the FCA. The court concluded that the presentation of the tainted evidence to the grand and trial juries was not harmless, and it both vacated the conviction and dismissed the indictment against the defendants.

Implications

The Second Circuit explained that cross-border prosecutions are on the rise and observed that the DOJ is detailing its prosecutors to foreign investigators, including INTERPOL and the FCA. The court understood that, in the governments view, witness testimony is often the key to unraveling international financial crime. Although the court would not presume to know exactly what this brave new world of international criminal enforcement will entail, it was certain that these developments abroad need not affect the fairness of our trials at home.

Indeed, earlier this year, the DOJs Antitrust Division issued a Division Update, explaining that international cooperation on investigations of cartels was a top a priority and it was exploring bi-, tri- and multilateral agreements to foster greater international cooperation. Additionally, at a recent speech in Brazil, Acting Principal Deputy Assistant Attorney General for the Criminal Division, Trevor N. McFadden stated that cooperation with our foreign partners has become a hallmark of our work and observed that reciprocity in information sharing is a vital tool in the modern prosecutors toolbox.

Indeed, recent settlements and investigations show that the DOJ is actively coordinating its efforts with the FCA and other foreign investigators. For example, earlier this year, State Street Corporation announced that it had reached a settlement with the DOJ concerning allegations it overcharged certain clients, an allegation first disclosed to the FCA in 2011. Also, in April, it was reported that the DOJ and the FCA are collaborating in an investigation into whether individuals at Barclays Bank engaged in civil or criminal misconduct in attempting to unmask a whistleblower. And the U.S. Attorneys Office for the Southern District of New York, the office that prosecuted Allen and Conti, announced late last year that it had charged several individuals with wire and securities fraud, identify theft and computer hacking following an investigation conducted in concert with Lahav 433, the cyber unit of the Israeli National Police, which, like the FCA, can legally compel witness testimony.

This international cooperation also is occurring among government regulators with civil remedies at their disposal. For example, when the SEC announced the filing of a Foreign Corrupt Practices Act complaint against executives at investment firm Och-Ziff Capital Management Group in January 2017, the SEC thanked the FCA and financial regulators in Guernsey, Jersey, Malta, Cyprus, Gibraltar and Switzerland for assisting in the investigation that led to the complaint.

Given the increase in cross-border investigations involving cooperation between U.S. and foreign law enforcement and regulatory authorities, practitioners representing defendants who have been interrogated abroad should investigate the possibility that compelled testimony was disseminated to witnesses the DOJ put before the grand jury or will call at trial. While the fact pattern in Allen is somewhat unique, there is a significant tactical advantage to identifying whether any witnesses were exposed to the compelled testimony and forcing the prosecution to carry its heavy burden under Kastigar of showing its evidence is untainted.

Read the original here:

Fifth Amendment Prohibits Use of Compelled Foreign Testimony in US Criminal Trials - Lexology (registration)

Creating a potential new impediment for collaboration between UK and US investigators, the Court of Appeals for the Second Circuit in New York recently held that evidence derived from compelled testimony cannot be used in a criminal case in the United States, even if the testimony was lawfully obtained in the foreign jurisdiction. In overturning the convictions of two former Rabobank traders charged with manipulation of the London Interbank Offered Rate, the Second Circuit in United States v. Allen[1] adopted a broad view of the Fifth Amendment right against involuntary self-incrimination as it applies to statements made to foreign regulators and law enforcement. The decision will make it more likely that compelled statements made to investigators in the UK and elsewhere will be inadmissible against criminal defendants in the US.

The case arose out of parallel investigations conducted by the UKs Financial Conduct Authority (FCA) and the US Department of Justice (DoJ) into alleged manipulation of the London Interbank Offered Rate (LIBOR) by employees of Rabobank.

In 2013, two former Rabobank traders and UK citizens, Anthony Allen and Anthony Conti, were interviewed by the FCA pursuant to its statutory authority to compel interviews (when such power is exercised the individual under investigation may be subject to a fine and/or imprisonment for non-compliance).[2] Each provided statements regarding their roles in setting LIBOR while at Rabobank, and the FCA showed their testimony transcripts to a third trader, Paul Robson. The FCA ultimately stayed its investigation and any enforcement action of Rabobank employees, including Robson, while the DoJ pursued criminal charges against them.

The following year, Robson was indicted in the US on wire fraud charges. He subsequently pled guilty and entered into a cooperation agreement with the DoJ, providing evidence and testimony against other Rabobank employees. Several months later, Allen and Conti were indicted on multiple counts of wire fraud and conspiracy to commit wire fraud and bank fraud based on evidence Robson had provided to US authorities.

At trial, Allen and Conti sought to supress Robsons testimony under the US Supreme Courts ruling in Kastigar v. United States,[3] which found that if a witness is compelled to testify, he must be granted immunity from use of the compelled testimony in subsequent criminal proceedings (so-called direct use immunity) and immunity from use of evidence derived from the testimony (so-called derivative use immunity). The DoJ contended that, in constructing the case against the defendants, the prosecution took steps to avoid the direct use of their compelled testimony, including conducting interviews independent of those conducted by the FCA. The district court sided with the prosecution, finding that Robsons review of Allen and Contis testimony to the FCA did not taint the evidence that he later provided because the DoJ had demonstrated an independent source for such evidence namely, Robsons personal experience and observations.[4] Allen and Conti were each convicted and sentenced, respectively, to two years and one year and a days imprisonment.

On appeal, Allen and Conti argued that their Fifth Amendment rights were violated when the DoJ used tainted evidence from Robson which was, in essence, derived from their own compelled testimony to the FCA. The DoJs position was that the Fifth Amendment did not apply to testimony compelled by a foreign government, which was the equivalent of statements made to a private sector employer under the threat of termination. Alternately, the DoJ argued that the evidence provided by Robson was untainted by the compelled testimony of Allen and Conti. The Second Circuit rejected the DoJs positions and unanimously reversed the convictions, holding that in order to be admissible, incriminating statements obtained by foreign officials must have been made voluntarily and cannot have been compelled, even if obtained in full compliance with the laws of the foreign government.

The protection against self-incrimination in the US is generally broader than that pertaining in the UK. The Fifth Amendment to the US Constitution states, No person...shall be compelled in any criminal case to be a witness against himself.... Courts in the US do not require every procedural step to be adhered to in order to ensure the admissibility of statements for example, foreign police officers are not required to provide Miranda warnings to inform defendants overseas of their constitutional right to remain silent.[5] However, the Second Circuits decision in Allen reinforces the decision already reached by several other circuits throughout the US that a statement must be voluntary and cannot be compelled if it is to be admissible in a criminal trial. This requirement applies regardless of whether the statement was compelled in accordance with the laws of the foreign country. In the words of Judge Jos Cabranes, who wrote the unanimous opinion in Allen, the right not to testify against oneself at trial is absolute.

In the UK, the common law and statutory protection of the privilege against self-incrimination protects a person from being compelled to produce documents or provide information which may incriminate the individual in criminal proceedings or expose him to a penalty for commission of a crime (akin to direct use immunity in the US).[6] However, this protection is not absolute; it is common for regulators to exercise their statutory investigatory powers to conduct interviews which may lead to a person being compelled to disclose incriminating information. Compelled statements obtained by the FCA may not be directly used as evidence against the accused in certain types of criminal proceedings, but this does not mean that the individual is shielded from providing the requested information, or from declining to answer questions.[7] Rather the FCA is restricted in dealing with the information in certain ways.

In addition, information derived from such compelled statements may be admissible in criminal proceedings in limited circumstances including where the accused asks a question in relation to, or adduces evidence in relation to, the compelled evidence. The FCA may also provide a copy of the transcript of a compelled interview to a co-defendant in a criminal prosecution (which is not unusual and indeed occurred when Robson was provided with the transcripts of Conti and Allens interviews), and use such a transcript to cross-examine the co-defendant. Failure to comply with an FCA statutory request for an interview or to cooperate and answer questions may be dealt with as if the individual were in contempt of court, and the penalty may include a term of imprisonment, a fine, or both.[8] Answering questions in such an interview with deliberately false or misleading information is also a criminal offence.[9]

The UKs Serious Fraud Office also has the power to compel individuals to answer questions pursuant to section 2 of the Criminal Justice Act 1987. However, answers provided during such interviews are generally not admissible against the interviewee in most types of criminal proceedings.[10]

The Second Circuits decision in Allen introduces several new obstacles that must be considered when US and overseas investigators and prosecutors seek to collaborate. US federal prosecutors will need to carefully coordinate investigative approaches with overseas regulators, and be wary of any compelled testimony obtained by foreign governments. If foreign testimony is compelled, US prosecutors will need to meet the heavy burden under Kastigar to demonstrate that evidence it seeks to use in a criminal proceeding was clearly derived from independent sources. Time will tell how significant a burden the Allen decision places on the trend in recent years for US, UK, and other international investigators to work together, particularly on cross-border white collar prosecutions.

[1] United States v. Allen et al., No. 16-898 (2nd Cir. July 19, 2017).

[2] Pursuant to section 171 of the Financial Services and Markets Act 2000 (FSMA) an investigator of the FCA (as defined in section 167 of FSMA), has the power to compel a person under investigation, or any person connected with the person under investigation, to attend an interview before the investigator or otherwise produce information required for the investigation. If a person so compelled fails to comply with such a request, the investigator may seek that the request be certified to the court, after which the court may sanction that person as if in contempt of court for non-compliance (provided there was no reasonable excuse for non-compliance). The penalty for contempt of court may include a term of imprisonment, a fine, or both. See section 177 of FSMA.

[3] 406 U.S. 441 (1972).

[4] Under Kastigar, where a witness who has invoked the Fifth Amendment is nonetheless compelled to testify, a Kastigar hearing is conducted at which the prosecution must demonstrate its case is not based on tainted compelled testimony.

[5] See, e.g., United States v. Martindale, 790 F.2d 1129, 1131-32 (4th Cir. 1986) (holding that defendants statement to British officers at Scotland Yard was admissible despite the officers failure to provide Miranda warnings).

[6] See section 14(1) of the Civil Evidence Act 1968, which applies to incrimination and penalties for domestic criminal offences only. However, an English court may exercise discretion and apply the protection where there is a risk of incrimination under foreign criminal law. See Arab Monetary Fund v Hashim [1989] 1 WLR 565as referred to inCompagnie Noga v Australia and New Zealand Banking Group Ltd [2007] EWHC 85 (Comm).

[7] See section 174 of FSMA.

[8] See section 177 of FSMA.

[9] See section 177(4) of FSMA, which provides that a person who knowingly or recklessly provides false or misleading material information to a regulator pursuant to a FSMA statutory request to provide information, will be guilty of an offence, and liable on summary conviction to a term of imprisonment not exceeding six months or a fine not exceeding the statutory maximum, or if convicted on indictment he or she will be liable to a term of imprisonment not exceeding two years, or a fine, or both.

[10] See section 2(8) of Criminal Justice Act 1987.

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US Second Circuit Finds Testimony Compelled by UK Regulators to ... - The National Law Review

The prosecution of two Rabobank traders from London, Anthony Allen and Anthony Conti, ran afoul of the Fifth Amendment privilege against self-incrimination. The United States Court of Appeals for the Second Circuit in Manhattan tossed out their convictions and, in a rare step, dismissed the indictment against them because the government used tainted testimony from its main witness.

The Financial Conduct Authority in England first started looking at Libor manipulation at Rabobank. Under British law, an individual working for a bank under investigation can be required to answer questions or face imprisonment for refusing to comply with the request. In exchange, the statements cannot be used directly against the person at a subsequent proceeding, although they can be used to develop new leads in a case

The British regulator dropped its investigation after Mr. Allen and Mr. Conti testified, and then prosecutors in the fraud section in the Justice Department took up the case, filing charges against the two men in 2014.

Mr. Allen and Mr. Conti were convicted after a trial on conspiracy and wire fraud charges involving their role in manipulating the submissions made by Rabobank that were used to set Libor. The governments theory was that they accommodated requests from the banks derivatives traders rather than making a good-faith estimate of the actual borrowing rate for that day. Evidence included a response to a traders request, I am fast turning into your Libor bitch!!! not a helpful comment.

Even with questionable messages, however, prosecutors needed a witness to explain what was taking place inside the bank and that the defendants knew they were acting improperly. That turned out to be Paul Robson, a co-worker subject of a Financial Conduct Authority enforcement action in Britain who also pleaded guilty in the United States for his role in the Libor manipulation.

Mr. Robson proved to be an effective witness, providing what the Second Circuit described as significant testimony against the two defendants, stating in court that the Libor submissions were nonsense and a charade.

The problem was that he carefully reviewed the defendants immunized statements to the Financial Conduct Authority and the appeals court found that the knowledge gained from them helped shape his testimony. It noted that Mr. Robsons own statement to the British authorities was toxic to the governments case because he later changed the description of the roles of Mr. Allen and Mr. Conti in setting Libor to reflect what they said.

The crucial legal issue was whether a grant of immunity by a foreign government in requiring testimony should be treated the same as if a witness received that protection from an American court. The Second Circuit was quite clear in its answer: The Fifth Amendments prohibition on the use of compelled testimony in American criminal proceedings applies even when a foreign sovereign has compelled the testimony.

The protection afforded under United States law is broader than in Britain, prohibiting any indirect use of an immunized statement to aid the prosecution. The Second Circuit concluded that Mr. Robsons testimony was tainted by what he read, even though prosecutors never introduced the statements in court.

Thus, any use of the statements against the defendants at their trial, like having a witness review it to assist in giving testimony, is a violation of their Fifth Amendment rights that can require reversal of a conviction. The cornerstone case for that proposition is United States v. North, a decision overturning the conviction of Oliver L. North because his immunized testimony before Congress in the Iran-contra hearings affected the recollection of a witness at his criminal trial.

The Second Circuit also dismissed the indictment because it found that the grand jury indirectly received Mr. Robsons views on the defendants involvement in manipulating Libor through the testimony of a F.B.I. agent, so the decision to indict the two men was also tainted by the immunized statements.

The appeals court had no sympathy for the governments complaint that applying the constitutional protection would make it more difficult to work with foreign governments to prosecute cases involving cross-border violations. The practical outcome of our holding today is that the risk of error in coordination falls on the U.S. government (should it seek to prosecute foreign individuals), rather than on the subjects and targets of cross-border investigations, the judges wrote.

Although prosecutors can seek a new indictment and a second trial, they may not use Mr. Robson or any other witness who might have reviewed the immunized statements made by Mr. Allen and Mr. Conti. That most likely means the case is over because there does not appear to be enough evidence, beyond some questionable messages, to show their intent to manipulate Libor submissions.

The decision will present a significant challenge to the Justice Department in pursuing fraud cases in which it works with foreign prosecutors and regulators to gather evidence. Many nations, especially in Europe, require those involved in the financial services sector to provide testimony during an investigation, and now any use of that power to gather evidence could make it more difficult to prove charges in the United States.

Prosecutors in this country are well aware of the potential pitfalls of prosecuting someone granted immunity because it requires showing that every piece of evidence to be used at trial is untainted by the immunized statements. Future investigations of international wrongdoing will have to avoid tripping the Fifth Amendment protection if a target is required to provide a statement.

The fallout from the Second Circuits decision is already being felt in the prosecution of two former Deutsche Bank traders accused of manipulating Libor. One of the defendants was compelled by the Financial Conduct Authority to testify and has asked that the court to scrutinize whether his statements have tainted the governments evidence.

Even if there are no Fifth Amendment issues, when the reliability of a crucial cooperating witness is open to question, the governments case can go straight down the drain.

The New York Times reported that the prosecution of two former JPMorgan Chase traders, Javier Martin-Artajo and Julien Grout, involved in transactions that culminated in 2012 in over $6 billion in losses for the bank, ended last Friday when the Justice Department announced it was dropping the case. Called a nolle prosequi motion, which means to be unwilling to pursue, prosecutors told the Federal District Court in Manhattan that Bruno Iksil, the major witness involved in the trades, who received the nickname London Whale for the outsize bets, was no longer a reliable witness.

Mr. Iksil created a website called London Whale Marionette to give his version of what happened, stating that this account looks quite different from the testimonies that I gave to the authorities. His admission that previous statements may not be accurate was certain to provide defense lawyers fodder for cross-examination to undermine his credibility if the case went to trial.

Whether that was ever going to happen was another question about the case. The Justice Department acknowledged in its motion that it was unable to extradite the two defendants from their home countries, Spain and France, so long as they stayed away from a nation that would send them to the United States.

Blaming Mr. Iksils commentary as the reason for dismissal could be a convenient face-saving means to drop a prosecution that was never going to reach the courtroom. The indictment of Mr. Martin-Artajo and Mr. Grout had languished since 2013, and the charges never reached anyone in JPMorgans senior management, despite Mr. Iksils claims that those well above him encouraged the risky trading. The bank paid out $920 million to settle multiple civil investigations of how it reported its losses.

The demise of the Libor and London Whale prosecutions shows how difficult it is for federal prosecutors to pursue charges in cases that reach across markets and involve defendants acting largely outside the United States.

One byproduct may be that the Justice Department will be more hesitant when it seeks to hold individuals responsible for misconduct by global financial companies, raising the prospect of even less accountability for corporate wrongdoing.

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Libor and London Whale Cases Show Hurdles With Foreign Defendants - New York Times

Glenn Simpson, whose Fusion GPS firm has been tied to anti-Trump efforts and pro-Russian lobbying, will not talk to lawmakers in response to a subpoena, the leaders of the Senate Judiciary Committe said Friday.

Committee chairman Chuck Grassley, R-Iowa, and ranking member Dianne Feinstein, D-Calif., confirmed in a statement that they subpoenaed Simpson to appear before the committee Wednesday as part of a hearing about the influence of foreign lobbying in last year's presidential election.

"Simpsons attorney has asserted that his client will invoke his Fifth Amendment rights in response to the subpoena," Grassley and Feinstein said.

Fusion GPS co-founder Glenn Simpson is seen at the Aspen Security Forum in Aspen, Colo. Friday (Pam Browne/Fox News)

During the campaign, Fusion GPS contracted former MI-6 agent Christopher Steele to look into rumors about Trump's financial and social connections in Russia. The resulting "dossier," which was leaked to the media following Trump's victory in November included a number of sordid allegations about the president's sexual proclivities.

Last week, Fox News reported that Fusion GPS had ties to Russian efforts to undermine U.S. sanctions that were led by attorney Natalia Veselnitskaya.

Investment manager Bill Browder claims Simpson was hired by one of Veselnitskaya's clients, Prevezon Holdings, as part of an effort to repeal the Magnitsky Act, named for Sergei Magnitsky an attorney for Browder who was beaten to death in a Moscow prison after accusing Russian authorities of stealing hundreds of millions of dollars through tax refunds and then laundering the money through New York banks.

Veselnitskaya became the center of a political storm earlier this month after Donald Trump Jr. made public emails indicating that he had taken a meeting with her on the promise of receiving damaging information about Hillary Clinton.

Grassley and Feinstein also noted that both Trump Jr., who met with Veselnitskaya in June of last year, and former Trump campaign manager Paul Manafort, who sat in on the meeting, are negotiating their appearances and the possibility of turning over documents, but left open the possibility that the pair would be subpoenaed.

Fusion GPS has said it had nothing to do with the Trump Jr.-Veselnitskaya meeting.

Fusion GPS learned about this meeting from news reports and had no prior knowledge of it. Any claim that Fusion GPS arranged or facilitated this meeting in any way is absolutely false, the company said in a statement.

Manafort had attracted scrutiny for months from congressional committees and Mueller. The Associated Press reported in June that Mueller's probe has incorporated a long-standing federal investigation into Manafort's financial dealings. That investigation is scrutinizing political consulting work he did for a pro-Russian political party in Ukraine and the country's former president, Viktor Yanukovych.

Manafort has denied any wrongdoing related to his Ukrainian work, saying through a spokesman that it "was totally open and appropriate."

Manafort also recently registered with the Justice Department as a foreign agent for parts of Ukrainian work that occurred in Washington. The filing under the Foreign Agents Registration Act came retroactively, a tacit acknowledgement that he operated in Washington in violation of the federal transparency law.

The Associated Press contributed to this report.

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Co-founder of firm behind Trump-Russia dossier to plead the Fifth - Fox News

O.J. Simpson will serve the remainder of his prison time in protected custody. Officials changed his status for safety reasons after a parole board voted unanimously last week to approve his release.

Simpson could walk out as soon as October 1, after serving nine years for armed robbery in Nevada.

65 Photos

From football fields to Hollywood to courtrooms, see O.J. through the years

In 1995, he was acquitted of the murders of his ex-wife, Nicole Brown Simpson, and her friend, Ron Goldman.

CBS News correspondent Jericka Duncan reports the case is still an open investigation for the Los Angeles Police Department.

A reported 13.5 million people tuned into Simpson's parole hearing last week. That's far fewer than the estimated 150 million people who watched his 1995 acquittal.

Still, it shows the O.J. obsession lives on, as well as the debate over who killed Nicole Brown and Goldman.

"I'd just like to get back to my family and friends and believe it or not, I do have some real friends," Simpson said in court last week.

It's unclear what life outside prison will look like for Simpson. But one thing is certain it'll be a world well acquainted with his past.

"People will always want to be a part of the O.J. case," Loyola Law School professor Laurie Levinson said. "They'll always be looking for evidence that the LAPD missed. That's because it's a mystery that to some has not been solved."

28 Photos

On October 3, 1995 "The Trial of the Century" ended with the acquittal of former football star O.J. Simpson for double-murder - Where are all the...

A string of TV films this past year reignited America's fascination with Simpson's acquittal.

"The word 'open' for an investigation can mean so many things," Levinson said. "It may simply mean that because O.J. was acquitted, and they've never found another murderer, there's no reason to shut it down."

Immediately following the 1995 verdict, Simpson vowed to find justice for his ex-wife in a statement read by his son, Jason: "I will pursue as my primary goal in life, the killer or killer who slaughtered Nicole and Mr. Goldman."

But no additional arrests were made. Simpson went on to release what was called a fictional account of the crime entitled, "If I did it." That book caused former Simpson trial juror Lionel Cryer to have a change of heart.

"The book was the turning point for me to go to the feeling that he probably did kill those people," Cryer said.

Simpson has repeatedly maintained his innocence. Last year, there appeared to be a possible break in the case when a knife was reportedly discovered on the property Simpson once owned. But the tip led nowhere, leaving the case largely where it was in the 1990s.

"O.J. cannot be tried again because of double jeopardy, but he certainly can be questioned," Levinson said. "In fact, he doesn't have Fifth Amendment protection anymore."

The LAPD wouldn't provide any additional details in the case. Legal experts say there are plenty of challenges that go with investigating a crime that is more than 20 years old. Among them, the fact that prosecutors are dealing with decades-old evidence and memories.

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Who killed Nicole Brown Simpson and Ron Goldman? - CBS News

BBC News

US-Russia probe: Trump son-in-law Kushner denies collusion BBC News Mr Kushner is not expected to invoke his Fifth Amendment right against self-incrimination at the Congress meetings. In his statement, he says: "I am happy to share information with the investigating bodies. I have shown today that I am willing to do so ... Kushner to face both intelligence committees this weekConcord Monitor Exclusive: Jared Kushner's White House connection still being used to lure Chinese investorsCNN all 348 news articles »

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US-Russia probe: Trump son-in-law Kushner denies collusion - BBC News

Heres a story that has gone completely under the radar, and raises some serious questions that the mainstream media largely seems to have ignored. Glenn Simpson, the co-founder of Fusion GPS, whose firm commissioned the salacious and mostly unsubstantiated Russia Trump dossier, plans to plead the Fifth after being subpoenaed by U.S. Senate Committee on the Judiciary.

According to documents obtained byLawNewz,attorneys for Fusion GPS Simpson sent a letter to Chairman Chuck Grassley expressing concern over the direction that the hearing was taking. The letter stated that Simpson would not voluntarily show up at the hearing due to a pre-planned vacation, and if subpoenaed he would exercise his First and Fifth Amendment rights not to testify before the committee examining the influence of foreign lobbying in the 2016 election.

Since March, the Senate Judiciary Committee has been seeking documents and information from Fusion GPS about the former M16 intelligence officer Christopher Steele who authored the research, and the dossier, which contained unverified salacious details of Trumps alleged escapades in Russia.The dossier was reportedly first commissioned by Republican opponents of Donald Trump, and then taken over by a Democratic client.

Every time committee investigators made requests, though, they were stonewalled by the Washington D.C. opposition research firm. The firm asserted that the information and documentation requested was protected by the First Amendment privilege of Fusion GPS and its clients, as well as confidentiality agreements and attorney client privilege. On Friday, Sen. Grassley slapped Simpson with a subpoena to appear before the committee.

Given the limitless scope of the hearing, as well as the privileges that Fusion GPS has already asserted, Mr. Simpson cannot risk a waiver of those privileges at the hearing. In the event of a subpoena, Mr. Simpson will assert applicable privileges, including but not limited to those under the First and Fifth Amendments, attorneys for Simpson wrote in a letter to the committee.

The Fifth amendment privilege, of course, allows witnesses to decline to answer questions that have the potential to incriminate them. So, the question remains, what exactly could Simpson, a former Wall Street Journal investigative reporter, say that he fears will put him in legally precarious territory?

It could mean various things, but the invocation on its own does not mean Simpson broke any laws. It could just as easily be a tactical move by his lawyers to try and secure a deal before he testifies, Bradly Moss, a national security expert and attorney toldLawNewz.com.

Questions about this to the communications firm representing Fusion GPS were not answered as off press time.

This article has been updated with legal commentary.

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What The Heck? Man Who Runs Firm Behind Trump-Russia Dossier ... - LawNewz

The co-founder of the Washington-based firm that commissioned the explosive and largely unsubstantiated anti-Trump campaign research dossier will reject a Senate subpoena to testify before Congress next week and invoke his Fifth Amendment rights, according to the heads of the Senate Judiciary Committee.

Glenn Simpson, the former Wall Street Journal reporter who helped start political intelligence firm Fusion GPS, has been a key figure in the Russian election meddling saga ever since the dossier, which alleged a years-long Kremlin conspiracy to elect Donald Trump and included colorful sex stories, was leaked to the press after the Republicans November victory over Democrat Hillary Clinton.

Since March, the Senate Judiciary Committee has pressed for Mr. Simpsons testimony and documents relevant to the case. His attorneys, Joshua A. Levy and Robert F. Muse, have rebutted with numerous defenses, including citing confidentiality agreements between Fusion GPS its clients. This week, a Judiciary hearing which would have featured Mr. Simpson had he voluntarily attended was canceled.

Late on Friday committee leadership executed hardball tactics to force him to tell what he knows as chairman Sen. Chuck Grassley, an Iowa Republican, and ranking member Sen. Dianne Feinstein, a California Democrat, announced theyd subpoenaed him.

Glenn Simpson, through his attorney, has declined to voluntarily attend Wednesdays Judiciary Committee hearing regarding compliance with the Foreign Agents Registration Act, the senators wrote in a statement. Therefore, a subpoena has been issued to compel his attendance. Simpsons attorney has asserted that his client will invoke his Fifth Amendment rights in response to the subpoena.

Mr. Simpsons lawyers in a letter reported by Politico, argued that this hearings purported focus on FARA [Foreign Agents Registration Act] is pretext for an exploration of Fusion GPS reported work, on behalf of other clients, to investigate the ties of Donald J. Trump, his campaign and their associates to Russia.

Wednesdays committee hearing is also scheduled to feature Donald Trump Jr. and President Donald Trumps one-time campaign manager Paul Manafort.

On Friday, Mr. Grassley and Ms. Feinstein said both Trump confidantes had agreed to negotiate to be interviewed and provide relevant documents but the Senators also reserved the right to subpoena them if necessary.

Legal battle to continue

More legal battle is expected between Mr. Simpson and the committee.

Washington insiders woke Saturday debating whether the political operatives strategy to assert his Fifth Amendment rights to protect himself against self-incrimination - would hold up or if hed put himself at risk of being held in contempt of Congress, which could mean future criminal charges.

Deeper digging into the dossier could also be embarrassing for both Democrats and Republicans.

Mr. Simpson hired former British intelligence agent Christopher Steele in 20015 to compile opposition research on then-candidate Trump. The resulting dossier which was reportedly sourced from the Kremlin allegedly received initial financial support from anti-Trump Republicans before being taken over and distributed by Democrats. It contained a lurid and largely discredited tale of a years-long Russian effort to elect the former reality TV star and property developer.

The Trump White House has vigorously denounced the allegations as a pile of garbage and FAKE NEWS! ever since online news service BuzzFeed posted all 35 pages.

This week The Washington Times reported that the FBI is routinely using the dossier as a checklist that agents tick off as they question witnesses in its Russia investigation. Sources told The Times it was strange that a gossip-filled series of memos is guiding the bureaus work.

For months Mr. Grassley has pushed to learn more about Mr. Steeles FBI relationships, which allegedly date back to help the former British spy provided the bureaus investigation of FIFA chief Sepp Blatter, whose 17-years reign over the football World Cup governing body ended amid corruption allegations.

Former FBI Director James Comey, whom Mr. Trump fired in May, has refused to publicly answer questions about the bureaus relationship with Mr. Steele.

Additional drama next week is expected from Mr. Trump Jr. and Manaforts testimony. Democrats are eager to question both about a meeting they held last year with a Russian lawyer who promised to provide comprising information about Ms. Clinton. Republicans are keen to start clearing the air on an issue that has distracted Washington from Mr. Trumps agenda.

On Friday, Reuters reported it had found public records contradicting statements by the lawyer who met Mr. Trump Jr. and Mr. Manafort that shed never worked for the Russian government. The news agency found Natalia V. Veselnitskaya had once represented Russias top intelligence agency, the F.S.B., which replaced the K.G.B. after the fall of the Soviet Union.

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Boss of firm behind anti-Trump dossier to plead the Fifth at congressional hearing - Washington Times

The Second Circuit yesterday became the first court of appeals to address a criminal appeal regarding the governments investigation into the manipulation of the London Interbank Offered Rate (LIBOR). Its decision in United States v. Allen reversed the convictions of two former Rabobank employees accused of using their roles in the banks LIBOR submission process to rig the global interest benchmark, and not only reversed the convictions but dismissed the operative grand jury indictment. The court concluded that the government had improperly used the defendants compelled testimony against them, holding that the Fifth Amendments prohibition on the use of compelled testimony applies even when the testimony was compelled by a foreign sovereign. The decision may well have a significant impact on the increasing number of extra-territorial investigations conducted by the United States Department of Justice (DOJ), in which it partners with foreign agencies to investigate and prosecute cross-border activity.

The pair Anthony Allen and Anthony Conti were initially investigated by the United Kingdoms Financial Conduct Authority (FCA). During the investigation Allen, Conti, and other Rabobank employees were interviewed by the FCA; Allens and Contis interviews were compelled by threat of imprisonment, though they were granted direct use immunity. The FCA later brought an enforcement action against one of their co-workers, Paul Robson, disclosing relevant evidence against him, including Allens and Contis compelled testimony. During this exchange, Robson reviewed the materials over the course of two or three successive or nearly successive days, admitting to having underlined, annotated, and circled certain passages of both Allens and Contis testimony. But, in short order, the FCA then dropped the case and the DOJ stepped in.

A grand jury returned indictments against Allen and Conti in 2014, charging both with one count of conspiracy to commit wire fraud and bank fraud, and several counts of wire fraud. Robson was the sole source of certain material information for the indictment, including the source of testimony provided by FBI agent to the grand jury that Allen and Conti had participated in rigging LIBOR.

Before trial, the defendants moved under Kastigar v. United States, 406 U.S. 441 (1972), to dismiss the indictment or suppress Robsons testimony. The Supreme Courts decision in Kastigar held that the government may compel testimony from witnesses, in spite of their invoking the Fifth Amendment privilege against self-incrimination, where it confers immunity from use of that testimony and evidence derived therefrom in a subsequent criminal case. The upshot is that the government must show in cases where such testimony is at issue that its proof rests on evidence other than the compelled statements and the fruits thereof. The district court in this case resolved that it would instead address any Kastigar concerns i.e., issues regarding the use of compelled testimony under Fifth Amendments Self-Incrimination Clause at trial.

The pair were convicted. After a post-trial Kastigar hearing, the district court held that Robsons reading, marking up, and annotating the compelled testimony, and the fact that material parts of the FBI agents grand jury hearsay testimony had been derived solely from Robson, were not enough to taint the evidence Robson provided because the government had shown an independent source for such evidence, to wit, [Robsons] personal experience.

The Second Circuit disagreed. It held first that the Fifth Amendments prohibition on government use of compelled testimony in American criminal proceedings applies, even when a foreign sovereign is the actor that compelled the testimony, noting that Amendment protects against the use and derivative use of compelled testimony against an accused in such a proceeding.

Second, it held that when the government attempts to use a witness like Robson, who has been substantially exposed to a defendants compelled testimony, it is the governments burden under Kastigar to show, at a minimum, that the witnesss review of the compelled testimony did not shape, alter, or affect the evidence used by the government.

It third held that a witnesss bare, generalized incantations that reviewing those materials did not taint his or her testimony (as was the case here via leading questions of Robson at the Kastigar hearing, which produced nothing more than bare, self-serving denials from Robson) are insufficient to meet this burden of proof.

And it lastly it had no trouble concluding that introducing testimony provided by Robson a key cooperator and prominent witness before the trial and grand jury (via a hearsay presentation) was not harmless error beyond a reasonable doubt. Robsons had been the only testimony refuting Allens and Contis central argument that they had not actually engaged in rigging the LIBOR benchmark. This finding as to testimony both at trial and before the grand jury resulted in the dismissal of the indictments against Allen and Conti.

The Court rejected the governments counterarguments, including that prohibiting the use in United States Courts of testimony compelled by a foreign authority could seriously hamper the prosecution of criminal conduct that crosses international borders, by among other things, inadvertently or negligently obstructing federal prosecutions. The court noted that this risk already exists within our own constitutional structure, and that the practical outcome of our holding today is that the risk of error in coordination falls on the U.S. Government (should it seek to prosecute foreign individuals), rather than on the subjects and targets of cross-border investigations.

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Fifth Amendment Concerns Result in Overturned Convictions in First ... - Lexology (registration)

Originally published on Just Security.

Over the weekend, one of President Donald Trumps personal lawyers, Jay Sekulow, refused to rule out the possibility that the president would pardon his associates, or even himself, in the Russia investigation. SekulowtoldABCsThis Week: He can pardon individuals, of course. Thats because the founders of our country put that in the United States Constitution: the power to pardon. But I have not had those conversations, so I couldnt speculate on that.

The issue of whether Trump could use his pardon power returns us to thedebateover whether a sitting president may be indicted or whether the Constitution requires impeachment and removal prior to indictment. Assomehave noted, that is almost a purely academic question because it is highly unlikely that Special Counsel Robert Mueller would indict Trump while still in office. In any event, there is the potential for post-presidency criminal exposure. In addition, Trumps family members and close associates could also be under investigation. This means Trump could be tempted to insulate them by granting pardons before theyre convicted of anything.

Presidents tend to save their most controversial grants of clemency for the end of their term in order to avoid the ensuing political firestorm while in office. But a Russia-related pardon would be particularly incendiary politically. That may not mean much to Trump given that a defining element of his rise has been his willingness to disregard longstanding norms and upend convention. He has mocked the disabled, attacked a Gold Star family, joked about sexual assault, savaged the free press, and fired the FBI director investigating Russian interference.

Aside from the political dynamics, granting a pardon in the context of the Russia investigation also raises fundamental questions of constitutional law.

Presidential pardon power derives from a specific grant in theConstitution. Article II, Section 2 vests the president with the Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment. The Presidents pardon power is limited to federal offenses, which include federal prosecutions in U.S. territories like the District of Columbia and Puerto Rico. Clemency requests, which include both requests for a pardon and requests that a sentence be commuted, typically flow through the Office of the Pardon Attorney at the Department of Justice (see the Justice DepartmentsFAQs). The Justice Department evaluates clemency requests pursuant tostandardsset forth in the U.S. Attorneys Manual. However, the president may bypass that process given that it is a power expressly reserved for the president.

A president can prospectively pardon individuals for crimes that have occurred but have not been charged. In the most famous example, President Gerald Ford pardoned Richard Nixon even though he was not under indictment. President Fordsproclamationincluded a full, free and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during his presidency. Similarly, President George H.W. Bush issued full pardons to six people implicated in the Iran-Contra Affair,some of whom still faced trial.

The Nixon pardon was a political disaster that ended Fords presidential honeymoon, but it also sparked a debate among legal commentators about whether it was constitutional. Mark Rozell gives a brief and interestingtreatmentof the debate. Some argued it was beyond the power of the president to relieve a person of criminal liability for hypothetical offenses (see Edwin Brown Firmage and R. Collin Magnumhere). However most sources suggest a prospective pardon is within the presidents constitutional authority. InEx Parte Garland, 71 U.S. 333, 380 (1867), the Supreme Court described the power in broad temporal terms:

The [pardon] power extends to every offense known to the law, andmay be exercised at any time after its commission, eitherbefore legal proceedings are taken, or during their pendency, or after conviction and judgment. (emphasis added).

A 1995 Office of Legal Counsel (OLC) opinionnotesthat presidents throughout U.S. history have asserted the power to issue pardons prior to conviction, and the consistent view of the Attorneys General has been that such pardons have as full an effect as pardons issued after conviction. It cites an Attorney General opinion from the 1850s, which defends the presidents preemptive power on the grounds that the act of clemency and grace is applied to the crime itself, not to the mere formal proof of the crime. Members of Congress have occasionally contemplated a constitutional amendment to preclude a future pardon like Nixon received, which itself suggests Congress acquiesces to the Executive Branchs view. Most legal authorities indicate President Trump has the power to grant prospective pardons for criminal acts not subject to formal charge.

Three days before Nixon resigned, OLC issued anopinionthat [u]nder the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself. Most legal experts supported that view, although the arguments as to why vary from natural law (first principles such as no man can be a judge in his own case) to constitutional structure (a self-pardon would defeat the purposes of Article I, Section 4, which expressly allows officeholders removed by impeachment to be subject to criminal prosecution). A handful of Republican members of Congress cited the possibility of self-pardon as a justification for their votes to impeach President Bill Clinton, which is discussed in the introduction to this Oklahoma Law Reviewarticle. While some doubt remains about whether the president has the authority to pardon himself, a self-pardon is most likely legally ineffective from shielding a president from future federal prosecution.

In its Watergate opinion, OLC also suggested that the president could invoke Section 3 of the Twenty-Fifth Amendment to allow the vice president, in his role as acting president, to pardon the president. If the President declared that he was temporarily unable to perform the duties of his office, the Vice President would become Acting President and as such he could pardon the President. Thereafter the President could either resign or resume the duties of his office, the opinion stated. However, if the president and vice president conspired to launder away the presidents criminal liability, it would trigger a seismic political event. It would also tarnish the vice presidents standing as a politically viable successor in the event of impeachment. However, I have not yet seen a legal obstacle to that kind of scheme.

As for the special counsel, a prospective pardon would have a narrowing effect on his authority, as it would end any criminal jeopardy arising from his investigation. However, provided there are still active leads and targets, the special counsel mandate would continue. It would raise interesting legal questions. For example, a pardoned individual could still potentially serve as an unindicted coconspirator, which triggers benefits to a prosecution such as a hearsayexceptionfor co-conspirator statements.

Congressional investigations serve legislative policy and oversight goals rather than criminal enforcement goals, so a pardon does not end an Article I inquiry. But there could be other counterintuitive effects of a pardon on the ongoing congressional investigations into Russias interference in the 2016 election and whether there was any coordination with the Trump campaign. For example, it could potentially remove federal legal jeopardy in a manner that may defeat an assertion of the Fifth Amendment privilege against self-incrimination. Were Trump to pardon his former national security adviser, Michael Flynn, tomorrow, Congress might be able to get a court order requiring Flynn to testify before the committees because he no longer faces federal criminal prosecution. That court order or resulting congressional contempt finding, in turn, could theoretically be enforced by coercive contempt (i.e., jailing until such time as the witness provides ordered testimony). Because coercion serves process integrity goals rather than criminal goals, that enforcement power probably could not be defeated by another presidential pardon.

The criminal and congressional Russian investigations should proceed with integrity and without interference. With Trump at the helm and his family under scrutiny, pardon power hangs over the investigations like a sword of Damocles. The pardon sword is largely held overhead by a thread made of political, rather than legal, fiber.

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Are There Limits To Trump's Pardon Power? - HuffPost

By Sam Lounsberry

Reporter-Herald Staff Writer

Corzo-Avendano

A 13-day trial is set to start Monday for Tolentino Corzo-Avendano, who has been charged with first-degree murder in the February 2016 stabbing attack in a Fort Collins home that left a woman blind in one eye and her grandmother dead.

Attorneys met to discuss the course of the upcoming trial at a hearing Wednesday, and the planned testimony of a former co-defendant in the murder case became a point of contention between prosecution and defense teams.

Corzo-Avendano, 27, was arrested after the reported stabbing of 26-year-old Sara Mondragon and her 61-year-old grandmother Cathy Mondragon, who died shortly after the attack.

Sara Mondragon is now reportedly blind in her left eye and can no longer walk.

A co-defendant of Corzo-Avendano, 42-year-old Tomas Vigil, was also originally charged with first-degree murder in the incident, but has since accepted a plea agreement for admitting to armed burglary with a crime of violence sentence enhancer.

Vigil is still being held in the Larimer County Jail, though, and because the District Attorney's Office plans to call him as a witness in its case against Corzo-Avendano during trial, Vigil's pending testimony was discussed between prosecuting and defense attorneys Wednesday.

Deputy District Attorney Nick Cummings said Vigil should not be allowed to be cross-examined by Corzo-Avendano's defense counsel due to Vigil's likely choice to remain silent and plead the Fifth Amendment.

However, defense attorney Kathryn Hay argued a witness's right to the Fifth Amendment is outstripped by a defendant's right to a full legal defense as outlined by the Sixth Amendment, and called Vigil's upcoming testimony "ripe for cross-examination."

8th District Judge Julie Kunce Field, who will preside over the trial, ordered the District Attorney's Office to file a written motion on the matter, and will rule on the course of Vigil's testimony after Hay and defense attorney Matthew Landers file a written response.

Previous motions filed by Landers included one to suppress from evidence given to the jury statements Corzo-Avendano made during his arrest and while in custody of Fort Collins police, and another to suppress phone conversations between Corzo-Avendano and Sara Mondragon while the former was in custody at the Larimer County Jail prior to the alleged stabbing assault.

Defense counsel has argued that police elicited responses from Corzo-Avendano illegally, prior to reading him his Miranda rights and after he evoked his right to have counsel present.

Prosecutors have not offered Corzo-Avendano a plea deal throughout the proceedings.

Sam Lounsberry: 970-635-3630, slounsberry@prairiemountainmedia.com and twitter.com/samlounz.

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Testimony of co-defendant contentious in upcoming Fort Collins murder trial - Loveland Reporter-Herald

The US Court of Appeals for the Eighth Circuit has upheld Nebraskas statutory medical malpractice limit, rejecting attacks that were based on the Seventh, Fifth, and Fourteenth Amendments of the US Constitution.

After a federal court jury awarded $17 million to a child born with severe brain damage, the court applied Nebraskas statutory limit of $1.75, for a reduction of almost 90%. The plaintiff appealed on several grounds, including four based on the US Constitution.

The court rejected the Seventh Amendment argument that the cap amounted to a denial of right to trial by jury, ruling that it is the jurys role to determine the extent of a plaintiffs injuries but not to determine the legal consequences of its findings.

The court also rejected the argument that the cap amounted to a taking without just compensation under the Fifth Amendment, ruling that the plaintiff never had a vested property right in uncapped damages.

Similarly, the court rejected two Fourteenth Amendments arguments. First, the court held that the cap doesnt deny equal protection to those with damages above the cap, as compared to those with damages below the cap (an argument that persuaded the Florida Supreme Court to strike down that states cap on June 8 in N. Broward Hosp. Dist. v. Kalitan, No. SC15-1858).

The court noted that the legislature enacted the cap for the express purpose of curbing meritless med mal claims and efficiently resolving meritorious claims. When enacted, the cap bore a rational relationship to that purpose. That is the only applicable standard, and the cap passes it. An argument that the cap is unnecessary or imprudent or has outlived its usefulness is irrelevant.

Last, the court rejected the argument that the cap denies a right of substantive due process by failing to provide a just substitute remedy for uncapped damages.

The case is Schmidt v. Ramsey, Nos. 16-1022, 16-1024 (8th Cir., June 22, 2017).

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Nebraska Med Mal Cap Survives 7th, 5th & 14th Amendment Attacks - JD Supra (press release)

As part of the National Constitution CentersInteractive Constitution project, leading scholars across the legal and philosophical spectrum find common ground on the Constitutions articles, amendments and provisions. In this essay, Brian C. KaltandDavid Pozen look at how the Twenty-Fifth Amendment seeks to answer questions raised by the original Constitutions treatment of presidential and vice-presidential vacancies and presidential disability.

The Twenty-Fifth Amendment seeks to answer a series of questions raised by the original Constitutions treatment of presidential and vice-presidential vacancies and presidential disability.

First, what happens when a presidential vacancy arises? Article II, Section 1, Clause 6 of the Constitution states that in case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice President. The line of succession from President to Vice President is clear, but what exactly devolves on the Vice President? Is it the office of President or just its powers and duties? When President William Henry Harrison died in 1841, Vice President John Tyler forcefully asserted that he had become President. Although Congress accepted this result, some disputed Tylers reading of the Presidential Succession Clause.

Second, what should happen when a vice-presidential vacancy arises? The original Constitution did not provide for filling such a vacancy. Prior to the adoption of the Twenty-Fifth Amendment, one Vice President resigned, seven died in office, and eight took over for Presidents who died in office: all in all, the vice presidency was unoccupied more than 20 percent of the time. This was less of a problem when the office was held in low regard, which it mostly was until the mid-twentieth century. But as the vice presidency began to grow into its modern forma sort of deputy presidencyit became more worrisome for the office to be vacant. These worries were sharpened by Congresss design of the 1947 Presidential Succession Act, which places the Speaker of the House and the President Pro Tempore of the Senate immediately behind the Vice President in line for the presidency, even when they do not belong to the Presidents political party.

Third, what happens if the President becomes unable to discharge the powers and duties of the office? Several Presidents suffered debilitating illnesses and injuries. For weeks and months at a time, the country was left without effective or accountable presidential leadership. Article II, Section 1, Clause 6 provided for the Vice President to step in when the President had an inability to discharge [his] powers and duties, but it provided no decision-maker, no procedures, and no definition of inability. Nor did it make clear whether the Vice President would act as President only until the President recovered, or instead would become President for the duration of the term. No Vice President wanted to seem like a usurper. In practice, power was never transferred and presidential inner circles typically concealed the Presidents condition. This pattern came to be seen as increasingly irresponsible with the advent of nuclear weapons during the Cold War; the nation needed a fully functioning presidency at all times. In 1958, President Dwight D. Eisenhower sought to break the pattern by being more open about his health and by entering into an agreement with Vice President Richard Nixon that provided for Nixon to serve as Acting President in the event of presidential inability.

The assassination of President John F. Kennedy on November 22, 1963 brought renewed attention to these questions. Led by Senator Birch Bayh, Congress gave them focused consideration and, in July of 1965, sent the Twenty-Fifth Amendment to the states for ratification. Less than two years later, the necessary thirty-eighth state legislature ratified it.

In response to the first question, regarding presidential vacancies, Section 1 of the Twenty-Fifth Amendment formalizes the Tyler precedent. It confirms that when the President is removed from office, dies, or resigns, the Vice President becomes President. When President Nixon resigned in 1974, Vice President Gerald Ford became President under Section 1.

In response to the second question, regarding vice-presidential vacancies, Section 2 of the Twenty-Fifth Amendment requires the President to nominate a replacement Vice President when that office becomes vacant, subject to confirmation by a majority of both the House and Senate. In 1973, Gerald Ford became Vice President through Section 2 after Vice President Spiro Agnew resigned. When Ford took over the presidency the following year, he promptly invoked Section 2 to nominate Nelson Rockefeller to fill the resulting vice-presidential vacancy.

In response to the third question, regarding presidential inability, Sections 3 and 4 of the Twenty-Fifth Amendment establish two procedures for transferring authority to the Vice President as Acting President. Building on the Eisenhower-Nixon precedent, Section 3 allows the President to transfer authority temporarily, by submitting a written declaration that he is unable to discharge the powers and duties of his office. The President can reclaim those powers and duties later by submitting a second declaration to the contrary. President Ronald Reagan (once) and President George W. Bush (twice) transferred authority to their Vice Presidents under Section 3 for a matter of hours while they underwent planned surgeries.

Section 4 addresses the dramatic case of a President who may be unable to fulfill his constitutional role but who cannot or will not step aside. It provides both a decision-maker and a procedure. The initial deciding group is the Vice President and a majority of either the Cabinet or some other body that Congress may designate (though Congress has never done so). If this group declares a President unable to discharge the powers and duties of his office, the Vice President immediately becomes Acting President. If and when the President pronounces himself able, the deciding group has four days to disagree. If it does not, the President retakes his powers. But if it does, the Vice President keeps control while Congress quickly meets and makes a decision. The voting rule in these contested cases favors the President; the Vice President continues acting as President only if two-thirds majorities of both chambers agree that the President is unable to serve.

Section 3 and (especially) Section 4 are long and complicated by constitutional standards. Nevertheless, they leave a number of issues unsettledmost significantly, what counts as presidential inability. At the Constitutional Convention in 1787, delegate John Dickinson asked, What is the extent of the term disability in the proposed presidential succession clause, and who is to be the judge of it? No response is recorded. By giving the President, Vice President, and Congress important and distinct roles, the Framers of the Twenty-Fifth Amendment went a long way toward answering the second part of Dickinsons question, rather than try to resolve the first part.

Brian C. Kalt is Professor of Law and The Harold Norris Faculty Scholar at Michigan State University College Of Law. David Pozen is Professor of Law at Columbia Law School.

For further discussion between Kaltand Pozenon the Twenty-Fourth Amendment, read the following Matters Of Debate:

The Unusual, Imperfect, Excellent Twenty-Fifth Amendment By Brian C. Kalt

The Deceptively Clear Twenty-Fifth Amendment By David Pozen

Filed Under: 25th Amendment

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Interactive Constitution: The Twenty-Fifth Amendment - Constitution Daily (blog)

President Donald Trumps senior adviser and son-in-law Jared Kushner will speak to the Senate Intelligence Committee in a closed-door session Monday as part of the panels widening probe into alleged ties between the Trump campaign and the Russian government.

The meeting was confirmed by Kushners attorney, Abbe Lowell, who said that his client is prepared to voluntarily cooperate and provide whatever information he has on the investigations to Congress and appreciates the opportunity to assist in putting this matter to rest.

Kushner is expected to answer the committees questions and not invoke his Fifth Amendment rights against self-incrimination, according to a person familiar with Kushners thinking.

The interview comes as the Senate Judiciary Committee also announced its intention to schedule former Trump campaign manager Paul Manafort and Trumps son Donald Trump Jr. to testify before that panel in open session next Wednesday.

Trump Jr.s attorney, Alan Futerfas, did not respond Wednesday evening to requests for comment about the Judiciary Committee hearing.

A lawyer for Manafort said that he and his legal team are reviewing the request and have not made a decision on which committee Manafort will speak with first.

The Judiciary Committee also asked Manafort and Trump Jr., as well as the Trump Organization and the Trump campaign, to preserve all relevant documents related to Russian interference in the 2016 election and to furnish the committee by Aug. 2 with documents related to the June 2016 meeting with Russians purported to have ties to the Kremlin.

Committee Chairman Charles E. Grassley, R-Iowa, and ranking Democrat Dianne Feinstein, D-Calif., added that they expect Manafort and Trump Jr. will comply voluntarily with invitations to testify. They added that they have agreed to issue subpoenas, if necessary for the two men.

Kushner, Manafort and Trump Jr. are expected to be asked about a number of reported contacts they and others had with Russians during the campaign and transition period. In particular, they are expected to be grilled about their participation in a June 2016 meeting in Trump Tower with a Russian lawyer that Trump Jr. was told had Kremlin connections and could provide damaging information on presidential candidate Hillary Clinton. Four other individuals were also present at the meeting.

Its safe to say that the committees going to reach out to everybody we feel has some contribution to make, Senate Intelligence Committee Chairman Richard Burr, R-N.C., said Wednesday. The Don Jr. meeting as of today has potentially eight individuals. All eight of those individuals will be important to us once we know the types of questions that we need answers to.

Carol Leonnig and Tom Hamburger contributed to this report.

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Kushner to testify before Senate intel panel Monday - Bangor Daily News

BLOOMINGTON A dispute over a coat led to a November shooting on Bloomingtons east side, prosecutors said Monday on the first day in the attempted-murder trial of Darvell Williams.

A six-man, six-woman jury was seated Monday before opening arguments and the states first witness, a woman who reluctantly testified against her former roommate.

Its a really simple case, Ghrist said. It will come down to common sense. The defendant took a 9 mm handgun and shot multiple times at Willie Love. Eight shell casings were found in the apartment the defendant was living in.

Williams is facing nine felony charges, including attempted murder in the Nov. 26 shooting that also damaged a mailbox in an apartment complex, a passing car and a window at Lowes Home Improvement at 2101 E. Empire St.

One of the charges, an aggravated unlawful use of a weapon into a vehicle, against Williams was dropped in court Monday.

Defense attorney Brian McEldowney asked the jurors to keep an open mind and to listen to all of the evidence before making a decision on Williams' guilt or innocence.

These are volatile charges and our natural reaction is to get angry, but please listen to all of the testimony before making a judgment, he said.

The state called Chiquan Felton to the stand, who attempted to avoid Ghrists questions.

I plead the Fifth, she said. I have nothing to say.

Ghrist reminded her that she was not facing charges, so there were no grounds to invoke the Fifth Amendment protection against self-incrimination.

After excusing the jury, Judge Robert Freitag explained that she had to be truthful with her testimony.

You are here pursuant to a court order and if you are asked a question, you must answer truthfully, and if you refuse, you could be held in contempt of court and be held in county jail until you decide to answer, he said.

When the jury returned, Felton testified that she never saw Williams shoot at Love because her back was turned while she was trying to open the door to the apartment she shared with Williams.

I heard gunshots, but I never saw him shoot at him, she said. Where I come from, you run away from gunshots.

The trial is expected to conclude Tuesday or Wednesday. Testimony will resume at 9 a.m. Tuesday.

Follow Kevin Barlow on Twitter: @pg_barlow

Excerpt from:

Prosecutor: Attempted murder began with feud over coat - Bloomington Pantagraph

The Telegraph

Judge blocks bid to delay multimillion-dollar school system lawsuit The Telegraph Robert Luskin, a lawyer representing Culver and his company, argued his clients won't be able to adequately defend themselves in the civil case without invoking their Fifth Amendment rights against self-incrimination, which could also have a negative ...

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Judge blocks bid to delay multimillion-dollar school system lawsuit - The Telegraph

Big school district lawsuit may be put on hold while prosecutors pursue criminal case The Telegraph What's more, they contend Culver and his company won't be able to adequately defend themselves in the civil case without invoking their fifth amendment rights against self-incrimination, which could also have a negative impact in the civil case. The ...

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Big school district lawsuit may be put on hold while prosecutors pursue criminal case - The Telegraph

While much of the debate to date has revolved around the threshold legal question of whether the commission has the authority to reclassify in the first instance, few have focused on perhaps the more substantive (yet notably neglected) legal problemthe commissions actual implementation of Title II, in particular the ratemaking provisions of Sections 201 and 202 and its forbearance authority in Section 10.

Why are these statutory provisions important? Because at bottom, net neutrality is nothing more than good old-fashioned rate regulation. Accordingly, if you are going to impose rate regulation, then Title II prescribes certain rules you must adhere to in order to ensure that the regulated firms Fifth Amendment due process rights are not violated.

Unfortunately for the FCC, these rules got in the way of what it wanted to do in its 2015 Open Internet Orderin particular, (1) to force BSPs to give edge providers terminating access without compensation (i.e., a regulated price of zero) in direct contradiction of the just and reasonable standard of Section 201; (2) to impose a blanket ban on reasonable discrimination in direct contradiction to Section 202; but yet (3) to give the patina of a light touch approach even though the agency wasdirectly dictating a confiscatory rate of zero, to use its Section 10 forbearance authority to eliminate the tariffing requirements of Section 203 even though the agency found BSPs to be gatekeepers. A proper reading of the Communications Act and the case law requires the exact opposite result.

The commissions solution to its legal pickle? As it proudly admitted in its 2015 Open Internet Order, it would simply ignore the vast majority of rules adopted under Title II (along with the years of case law and its own precedent) by selectively picking and choosing whatever provisions of Title II it found convenient to achieve a results-driven outcome, so that it could tailor [Title II] ... for the 21st century. In effect, since the statute prohibited the rules the com-mission wished to impose, the agency simply rewrote the statute.

What is important to understand is that the ratemaking and forbearance provisions of Title II are not solely designed to govern the conduct of the regulated firm (the commissions rules serve that function), but to govern the conduct of the regulator. The FCCs 2015 Open Internet Order therefore raises an important question about the nature of the regulatory statethat is, should an administrative agency be permitted on its own initiative to expand its power beyond its statutory mandate at the expense of private actors Fifth Amendment due process protections?If an administrative agency, by its own admission, is free to interpret selectively its own enabling statute to fit the times, then what is the role of Congress? At stake, in other words, is whether an administrative agency should be permitted to re-write the lawespecially when it does so simply to fit a political agenda.

According to the D.C. Circuit in United States Telecom v. FCC, the answer appears to be yes. Citing the Supreme Courts seminal case in Brand X, the D.C. Circuit found in USTelecom that the FCC had widenearly unboundedlatitude to interpret the Communications Act and not only upheld the agencys decision to reclassify but also upheld the agencys ability to tailor how it chose to implement Title II. In so doing, the D.C. Circuitrather by design or by omissionhas taken Chevron deference to the extreme.

USTelecom has greatly expanded the commissions authority to set the rates, terms and conditions of private actors well beyond its statutory mandate. Accordingly, the statutory construct of Title II now has no meaning; it is some bizarre legal hybrid that the FCC has made up and the D.C. Circuit has sanctioned. For those who care deeply about due process and the rule of law, the precedent set by the D.C. Circuit in USTelecom is deeply troubling and is a case that we will likely have to deal with its aftermath for years to come.

If anything, USTelecom proves the old adage that bad facts make bad law. While the commission certainly has great latitude to interpret the Communications Act, as the Supreme Court has held, an administrative agency must nonetheless operate within the bounds of reasonable interpretation and it is not at liberty to pick-and-choose select provisions of the statute to govern for the sake of expediency.

Or does it? With the D.C. Circuits decision in USTelecom, the FCC apparently now has carte blanche to tailor its enabling statute to fit a results-driven outcome and trample on key due process concerns so long as it can sprinkle some pixie dust about promoting broadband deployment.

And if that unbridled expansion of regulatory power doesnt scare you, then it damn well should.

Lawrence J. Spiwak is president of the Phoenix Center for Advanced Legal & Economic Public Policy Studies.

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Rate Regulation By Any Other Name - Broadcasting & Cable (blog)

The public learned on March 10, 2015 that Hillary Clinton had more than 60,000 emails on her private email system, and that she had turned over "about half" of them to the State Department and destroyed the rest, which she said were "personal" and "not in any way related" to her work as Secretary of State.

The public learned later the lengths to which Clinton went to make sure the "personal" emails were completely and permanently deleted. Her team used a commercial-strength program called BleachBit to erase all traces of the emails, and they used hammers to physically destroy mobile devices that might have had the emails on them. The person who did the actual deleting later cited legal privileges and the Fifth Amendment to avoid talking to the FBI and Congress.

Clinton's lawyer, David Kendall, told Rep. Trey Gowdy, chairman of the House Benghazi Committee, that investigators could forget about finding any of those emails, whether on a device or a server or anywhere. Sorry, Trey, he said; they're all gone.

It was, as the New York Times' Mark Landler said in August 2016, the "original sin" of the Clinton email affair that Clinton herself, and no independent body, unilaterally decided which emails she would hand over to the State Department and which she would delete.

Still, there were people who did not believe that Clinton's deleted emails, all 30,000-plus of them, were truly gone. What is ever truly gone on the Internet? And what if Clinton were not telling the truth? What if she deleted emails covering more than just personal matters? In that event, recovering the emails would have rocked the 2016 presidential campaign.

So, if there were an enormous trove of information potentially harmful to a presidential candidate just sitting out there what opposing campaign wouldn't want to find it?

There have been recent reports that last summer a Republican named Peter W. Smith made some sort of effort to find the missing Clinton emails, apparently getting in touch with hackers, some of whom may have been Russian. But nothing came of it, and no evidence has emerged that Smith was connected to the Trump campaign. (The 81-year-old Smith later committed suicide, apparently distraught over failing health.)

In a phone conversation Friday, Corey Lewandowski, the Trump campaign manager who was fired on June 20, 2016, said he never heard of or communicated with Smith, and wasn't aware of any effort to find the missing Clinton emails. "I never solicited, or asked anybody to solicit or find a way to get these potential emails," Lewandowski said. "And to the best of my knowledge, nobody [in the campaign] did either."

Still, Lewandowski added that, "In the world of cybersecurity, it's fairly well known that when you delete emails, they're not gone."

Another former top Trump aide said that was a common view in the campaign. "The feeling was that they [the emails] must exist somewhere," the former aide said, "because once something is digital, it's never truly gone."

"Trump believes that," the aide added.

Still, the aide also said he had never heard of Peter W. Smith, and didn't know of any effort to find the emails. "There was never a thought of who might have them," the aide said. "Nobody at the campaign was trying to find them."

Both Lewandowski and the other former aide stressed the greatest political value of the missing emails, as far as Trump was concerned, was that they gave Trump a way to "poke" and "troll" his Democratic opponent. The Clinton team was BleachBitting and swinging hammers to smash devices and she says everything was on the up and up, that she has nothing to hide? Candidate Trump could riff on that all day. It was as if Clinton were trying her best to look guilty, to Trump's political benefit.

But at least one high-ranking Trump team member apparently did believe the missing Clinton emails still existed. In August 2016, Gen. Michael Flynn, then the Trump campaign's top national security adviser, discussed the emails with a conservative radio host named John B. Wells. "The big question is, does somebody have more emails?" Flynn began:

Does somebody have the 30,000? The likelihood of that ... the likelihood somebody has all of those emails, at a nation-state level, meaning Russia, China, Iran, North Korea, or even other countries, or some other large hacktivist group, like the WikiLeaks group that we know exists the likelihood is very high, and I'm talking like better than 95 percent. I would actually bet a paycheck on it, that somebody has it.

Flynn, of course, was a former director of the Defense Intelligence Agency, so he should know something about that. Flynn also had Trump's ear on national security and other matters. And he was saying the emails are out there, somewhere.

Which leads to a question. Would it have been appropriate for the Trump campaign to try to find the emails? After all, the emails were under congressional subpoena, under FBI investigation, of intense public interest, and a potentially explosive issue in the presidential campaign. What opposing campaign wouldn't want to know what was in them?

Look at a few possible scenarios. What if a member of the Clinton team defected and offered them to the Trump campaign? Would it have been appropriate for Trump to accept?

Or: What if a rogue hacker "a 400-pound person sitting in bed," as Trump once said got the emails and offered them to the campaign? Would accepting under those circumstances have been appropriate?

What if an intelligence operative from a friendly country got them and offered them? And what about an unfriendly country?

Would there be a scale, from standard oppo research on one end to treason on the other, depending on how the emails were acquired?

I posed those hypotheticals at least I think they are hypotheticals to three veteran Republican operatives: Tim Miller, who served as spokesman for Jeb Bush's 2016 campaign; David Carney, a New Hampshire-based strategist who's been involved in dozens of campaigns; and Barry Bennett, who ran Ben Carson's 2016 campaign and also served briefly as an adviser to the Trump effort.

Miller, a vocal critic of the president, stressed via email the question comes in the context of Russia's hacking of DNC and John Podesta emails. "So I would say that it would be unacceptable in opposition research to do that hack Podesta/DNC in any situation," Miller said.

"Where Hillary's deleted emails from her time as Secretary of State are concerned, many of those may have actually been public records," Miller continued. "So if they were acquired through a whistleblower or a lucky break scraping Internet archives, that would of course be fair game. That said, under no circumstance would enlisting a hostile government's help be acceptable for a myriad of reasons: legal, ethical, practical (how can you govern when you are in debt to a hostile government)."

For his part, Carney, writing via email, offered ways a campaign might have handled such a situation, had it arisen. "If the emails did show up, most serious campaigns would not touch them directly legalities and all. But friends of the campaign would strongly encourage the turncoat to dump them to reporters. Easier not to have fingerprints on questionable documents."

"Foreign governments would always use high-level U.S. third parties, not any direct campaign contacts, and most likely they would end up in the media," Carney continued. "So YES campaigns would seek the emails, but not directly if they were not legally available or the sources were questionable."

Bennett began by noting that the Trump campaign would have had "no ability to find [the missing Clinton emails] all by themselves. There was no tech operation until late summer, and even then it was basic."

"If someone I didn't know reached out and said, 'I have them,' I would have immediately called the committee and said this person says he has them," Bennett continued, via email. "I wouldn't want to touch them. But I would very much want them out there in the public.

"It is still hard for me to believe that copies of them aren't out there somewhere," Bennett added, going on to provide advice for a campaign facing a scandal-plagued opponent.

"Even during the Carson campaign I didn't meet with anyone I didn't know," Bennett said. "How do you know you're not being set up? I had people come to me and say they had dirt on [Ted] Cruz. I passed."

"Information can only be as trusted as the source that gives it to you. You can get easily burned with bad info or even looking like you want dirt. This is why everyone outsources research. No one in their right mind would want to touch documents under subpoena. No lawyer would ever let you."

"All of this being said, of course you want them to go public," Bennett concluded. "If the Russians had them, the last thing they would do is call a goofy record promoter in England and set up a meeting with a lawyer that can't even get a visa. Instead, DHL them from Asia to the New York Times."

Bennett alluded to the odd circumstances of Donald Trump Jr.'s June 9, 2016, meeting with Russians offering some sort of dirt on Hillary Clinton (not, as far as we know, the missing Clinton emails). In the days since the meeting was first reported, several political operatives of both parties have claimed they would never have taken part in such a meeting. While that might indeed be true, some would certainly have tried to find a hands-off way to get damaging material about their opponent into public view.

In the 2016 campaign, everyone knew Clinton had a huge secret those 30,000-plus "personal" emails and that she had gone to extraordinary lengths to keep that secret. Many people, and not just partisan warriors, suspected she had something to hide. And now, it should not be a surprise if there were some shenanigans as political operatives tried to learn the real Clinton email story.

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Byron York: What campaign wouldn't seek motherlode of Clinton emails? - Washington Examiner