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

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