LAWYER

The Practitioner's Guide to Global Investigations - Eighth Edition

 
March 12, 2024

 This article was first published by Global Investigations Review in January 2024; for further in-depth analysis, please visit GIR The Practitioner's Guide to Global Investigations - Eighth Edition.1

Individuals in Cross-Border Investigations or Proceedings: The U.S. Perspective

In March 2023, Assistant Attorney General Jonathan Kanter of the U.S. Department of Justice (DOJ) Antitrust Division, chair of the Federal Trade Commission (FTC), Lina Khan, and Executive Vice President Margrethe Vestager of the European Commission met in Washington, DC, for the third United States-European Union Joint Technology Competition Policy Dialogue, during which the DOJ and the FTC agreed to send liaisons of agency experts to Brussels to assist the European Union with implementing its Digital Markets Act.2 The exchange of liaisons is the latest in a series of close cooperations between the DOJ, the FTC and the European Commission on antitrust law and has raised concerns from some in the U.S. Congress that the United States is exporting its enforcement authority in furtherance of political goals ‘under the guise of “international cooperation”’.3 The validity of these concerns aside, cooperation between U.S. enforcement agencies and their counterparts around the globe is robust and growing. The United States, Canada and Mexico are already preparing a joint initiative to cooperate on law enforcement actions arising out of the 2026 World Cup.4 At the same time, the DOJ is rapidly expanding its capacity to prosecute crimes with an extra­territorial nexus, adding 25 new prosecutors to the National Security Division, expanding by 40 per cent the Criminal Division’s Bank Integrity Unit (the sole focus of which is to address violations of the Money Laundering Control Act, the Bank Secrecy Act, and economic and trade sanctions programmes), and forming the multi-agency Disruptive Technology Strike Force to protect critical technology supply chains and assets from acquisition by U.S. adversaries.5

As U.S. law enforcement increases its already robust cooperation with foreign authorities and pours additional resources into enforcing laws with inter­national scope, cross-border U.S. investigations – already a staple of the global enforcement landscape – are becoming even more common. White-collar lawyers representing individuals in U.S. cross-border investigations or proceedings, whether civil, criminal, regulatory or an internal corporate investigation, face a multitude of considerations. Although this chapter focuses primarily on criminal proceedings, the issues implicated are common to other cross-border investigations or proceedings and understanding each step in the worst-case scenario of U.S. criminal charges will help white-collar practitioners counsel clients through any cross-border proceedings they may face.

38.1 Initial considerations

At the start of any individual representation involving a U.S. cross-border investigation or proceeding, counsel should carefully assess the client’s status. A client can become involved in a cross-border proceeding in many ways, including a request for an interview or materials by company counsel conducting an internal investigation, as a witness, as a subject or target of a U.S. government investigation, or as a defendant in a criminal case.6

The first priority for any representation should be to determine the client’s potential criminal liability, regardless of the client’s current status. The existence of potential criminal liability can have a significant effect on the strategic options that counsel (and the client) should consider. It is not always possible to have the complete picture of the potential liability, as counsel will often have imperfect and limited information at the beginning of the representation, but counsel can help mitigate this disadvantage by robust client debriefing and, to the extent possible, obtaining information from company counsel and government attorneys.

Counsel should also remember that any investigation is likely to evolve as it is under way, and a client’s status may change. Thus, continuous assessment of the client’s potential exposure is essential to appropriately advise on the strategic options available and the potential risks over time.

It is also crucial at an early stage to determine the client’s goals other than avoiding criminal liability, such as continued employment, avoiding civil litigation and minimising reputational risks. Understanding where your client would like – and can reasonably hope – to stand on the other side of a cross-border proceeding will allow counsel to better advise the client on how to navigate the situation.

38.2 Considerations for an uncharged client

Clients who have not been charged criminally may find themselves involved in a U.S.-facing cross-border investigation or proceeding through a corporate internal investigation or a request for interview from a U.S. government agency in a civil or criminal investigation. This section discusses what areas counsel should cover with the client before and during engagement with the company counsel or government actors conducting the investigation.

38.2.1 Whether to cooperate with an internal investigation

Current employees may have a duty to cooperate based on their employment agreements or corporate internal policies, and deferred compensation or separation agreements may require former employees to cooperate. Increasingly, companies are facing pressure from the DOJ and the U.S. Securities and Exchange Commission (SEC) to update their compensation policies to incentivise cooperation.7 Employers, through employment agreements or compensation policies implemented by the company, may withhold discretionary post-employment compensation to incentivise cooperation even when there is no formal or legally enforceable obligation to cooperate.

Counsel will need to familiarise themselves with the collateral consequences of non-cooperation, including non-cooperation resulting in termination for cause.8 Counsel should also consider engaging employment counsel to assist with any issues regarding the client’s employment agreements or local labour law.

The risks of cooperating for a client with potential criminal exposure can be more significant. In most jurisdictions, an investigating employer owns any legal privilege covering communications during the investigation, and the company may waive the privilege through self-reporting or compelled disclosure. The company may even disclose notes or summaries of the interview. Counsel should assume that all relevant facts – particularly all that implicate the client in the conduct under investigation – will be turned over to the government in an ongoing or future enforcement action, and advise clients accordingly.

Cooperating with an internal investigation also typically waives an individual’s right against self-incrimination, protected under the Fifth Amendment to the U.S. Constitution.9 Although the Fifth Amendment technically applies where cooperation with an internal investigation is compelled (e.g., by threat of dismissal, loss of deferred compensation or other economic consequences), and the employer’s actions are ‘fairly attributable’ to the government,10 courts rarely find the necessary level of state action, and counsel should anticipate that agreeing to an interview with company counsel will waive any claim to Fifth Amendment protection.

Counsel should also be aware of and advise the client on laws prohibiting cooperation; for example, the Chinese International Criminal Judicial Assistance Law requires an individual to obtain approval from Chinese government authorities before providing evidence, materials or any other assistance to any other country’s criminal proceedings.11 Other countries also have laws that may restrict the transfer of data and documents and, thus, inhibit cooperation.

In the final analysis, deciding whether to cooperate in an internal investigation typically boils down to a reasonably simple calculus: will information from the client increase or decrease their criminal exposure? If answering questions truthfully increases the likelihood of criminal prosecution, it is rare that the attendant adverse employment or regulatory licensing consequences override. Where the client’s truthful answers will take them outside the circle of suspicion in a criminal investigation, the decision to participate can be straightforward. The difficulty arises in answering this question with imperfect information when negative employment consequences for a refusal to engage are probable, but the potential effects on future liability are less evident. In such instances, experienced counsel must gather as much information as possible from all sources – the client, company counsel, counsel for other clients also subject to the investigation and counsel’s own independent investigation (and, depending on the nature of the investigation, expert assistance) – and advise the client as to the costs and benefits in what is often a choice among many risk-laden options.

38.2.2 Request for interview in a government investigation

Because the information gathered in an interview with company counsel will typically end up on the desk of prosecutors or other U.S. enforcement authorities if it reveals any wrongdoing, the decision tree for responding to a request for an interview by U.S, authorities is substantively the same as a request from company counsel, despite the different source and procedures governing the response.

Outside the United States, initial contact by investigating U.S. authorities can come via a mutual assistance legal treaty (MLAT) request or other formal request in jurisdictions lacking treaties,12 both of which are enforced by local authorities. Within the United States, a client may be served with a subpoena compelling testimony or materials, or may be approached by U.S. agents or police with a request to speak voluntarily. When a response for testimony is compelled, it can be resisted (if at all) only via a formal invocation of the Fifth Amendment. Production of documents and materials is generally not subject to such protection, although there is a limited exception covered by the Act of Production doctrine, in which the act of producing materials ‘is, itself, (1) compelled, (2) testimonial and (3) incriminating’.13

In jurisdictions in which investigating authorities can compel testimony, counsel should state at the start of any interview that the client would invoke their Fifth Amendment rights if they were in the United States, as U.S. prosecutors could use any testimony a client gives to a foreign authority in a present or future criminal or civil proceeding in the United States.14 Such an invocation will not stop the interview, but it will cause investigating criminal authorities in the United States to shield themselves from the contents of the interview or risk the Fifth Amendment violation spoiling their investigation from that point forward.15

Though direct approaches are improper under DOJ policy when the client is outside the United States,16 when a client is within the United States U.S. authorities often contact the client directly via phone, email or text and will secure information then and there in any resulting interaction, including an in-person meeting. Clients should be advised of the dangers of speaking with law enforcement without the benefit of counsel or preparation, and of their right to decline such an invitation – a right it is almost always wisest to exercise. Where a direct approach carries a non-compelled request for an interview, the client should consult with counsel, and counsel should understand that declining the request will often lead to one of the compelled requests discussed above.

Once counsel is aware of the existence of a U.S. government investigation, they will typically want to confer with the investigating authority to gather any information possible. Prosecutors from the DOJ will often provide counsel with an understanding of whether their client is a witness, subject or target of the investigation, and will often provide additional context about their reasons for wanting to speak with the client. Although not required across the board, many regulators will also provide similar information, which can be critical in determining how to proceed.

The decision about whether the client should agree to an interview typically boils down to the same assessment as with requests by investigating company counsel: whether the client’s truthful answers will lessen or increase potential exposure, and what will be the collateral effects of declining. Counsel must again thoroughly review this question with consideration of all available facts and context, and advise the client accordingly.

38.2.3 Evidentiary issues in internal investigations

In internal investigations, clients may be asked to provide various types of records to company counsel. Counsel should first determine the client’s status, including whether they are a current employee and wish to remain a current employee. Counsel should also carefully review the client’s employment contract and other corporate policies to determine what records must be provided. In some cases, materials created or maintained in the course of employment are considered the employer’s property and must be turned over. Failure to comply with a company’s request risks disciplinary action, dismissal or being reported to authorities as uncooperative or obstructionist. However, before handing over records, counsel should consider whether (1) the materials were created or maintained in the course of employment, and (2) the employee had a reasonable expectation of privacy with respect to the materials. A finding of a reasonable expectation of privacy could protect the client’s records in a number of jurisdictions.17 Nevertheless, counsel should advise clients to preserve all potentially relevant materials per any legal holds to avoid even the appearance of potential spoliation.

Before turning over any documents, counsel should always consider whether the client may have a cognisable claim that the attorney–client or other applicable privilege protects materials.18 As discussed in the previous section, the client may also have Fifth Amendment protections for refusing to produce incriminating documents to U.S. authorities. Counsel should also seek advice from local counsel regarding the client’s (and counsel’s) exposure for turning over any documents to company counsel under applicable data privacy or other local laws.

Finally, in most internal investigations as well as government investigations, company counsel controls most relevant materials. To this end, counsel should develop a positive working relationship with company counsel to promote information sharing.

38.2.4 Impact of company settlement

A company settlement or plea agreement can have a significant effect on the representation of a current or former employee of the company. Counsel must consider to what extent the company’s settlement or plea requires the company to name individual employees, reference employee conduct or admit facts implicating individual employees. The risk that a company names individual employees is particularly acute given the DOJ’s policy requiring companies to report misconduct by individual wrongdoers to receive cooperation credit.19

A company’s settlement or plea agreement with enforcement authorities does not extinguish potential criminal liability for the individual client, nor does it eliminate the potential for claims in separate civil litigation, including those, for example, in a shareholder derivative suit. Therefore, counsel must continue to apprise the client of current litigation and enforcement activities in the aftermath of a corporate resolution.

38.3 Considerations for charged clients

A client’s first awareness of a U.S. criminal investigation may come via their arrest or the news that they have already been charged. When this happens, counsel has several options for defending the client, including cooperating with U.S. authorities, negotiating a plea deal or fighting the charges. Counsel should continuously assess the strength of the government’s case, as a client’s ability and willingness to fight a criminal case may change as the investigation or prosecution progresses. Counsel should also be aware of the unique nature of U.S. cross-border criminal proceedings, which often involve engaging with foreign authorities on arrest, bail and extradition.

38.3.1 Responding to criminal charges

38.3.1.1 Assessing the charges

When a client is criminally charged, counsel should gauge the strength of the government’s case against the client and determine the likely outcome of different defence strategies. Such an assessment often includes using the U.S. Sentencing Guidelines20 alongside an analysis of sentences in similar cases in the same courthouse or before the same judge to determine the likely sentencing range the client would face should they be found guilty on the charges, researching what defences are applicable for the crimes charged, and engaging with government prosecutors to evaluate their posture towards the case and what evidence they currently have against the client. Counsel may also want to engage in privileged joint defence conversations with counsel for co-defendants to determine what information they may possess about the facts and the client’s exposure, including whether other defendants have decided to cooperate with government prosecutors.

38.3.1.2 Cooperating with a criminal investigation

Typically, cooperation can occur during three phases of a criminal investigation or proceeding: the investigation itself, the litigation stage or the trial. Cooperation typically involves a ‘proffer’, where the client appears with their counsel for one or more interviews with government prosecutors to answer questions about the case and other potential criminal activity committed by themselves and others. Before a client agrees to give a proffer, counsel should start with an attorney proffer, where counsel meets with the government to preview the client’s information, assess how the government might react to the client’s testimony and learn more about the investigation. The attorney proffer can yield important insights into whether the client has valuable information for the government’s case and whether the client can truthfully and fully respond to questions during proffer sessions and trial.

Counsel should ensure a proffer agreement is in place before the client appears for any proffer sessions. These proffer agreements, also referred to as ‘Queen for a Day’ letters, typically include a provision that the government will not use statements made during the interview directly against the client;21 however, counsel should remain vigilant about other potential uses of client statements, such as to obtain additional evidence (including against the client) or for impeachment of the client, and ensure the client fully understands them. Counsel should also advise the client before any proffer session that any false statements to the agents or prosecutors can be prosecuted separately as a felony, and ensure that the client understands the limited protections and potential pitfalls of any proffer agreement.

Prosecutors frequently require cooperators to plead guilty to agreed charges, to act as an informant for the government, providing information about the client’s (and others’) involvement in criminal conduct, and to testify against others at trial. The client must also disclose any other potential misconduct, even if outside the scope of the investigation, and be fully transparent about their finances. Counsel should ensure the client is fully aware of these obligations before agreeing to cooperate, as failure to adequately perform the duties required of the client could jeopardise any cooperation benefits and create significant additional downsides.

38.3.1.3 Potential benefits of cooperation

The primary benefit of cooperation is reduction or even avoidance of criminal liability. In the ideal scenario, clients may have the opportunity to cooperate pre-indictment, though this again speaks to the importance of counsel actively engaging with the government at the earliest stages of an investigation. This is the best chance for counsel to negotiate immunity or a non-prosecution agreement (NPA), in which authorities decline to bring any charges.

More commonly, the government may require the client to enter into a cooperation plea agreement with a ‘5K1.1’ provision. This refers to Section 5K1.1 of the U.S. Sentencing Guidelines, under which the government agrees to recommend a lower sentence than would otherwise be imposed if it determines, in its sole discretion, that the client has been fully truthful and has provided ‘substantial assistance’ to the government’s investigation or prosecution of others.22 To receive credit for substantial assistance, the client will, as a minimum, need to be fully transparent about their illicit conduct and provide information about other people involved in the criminal activity. The client may also be required to produce documents, participate in investigatory operations such as recording conversations with other targets or testify before a grand jury or at trial. A cooperation plea agreement does not guarantee a favourable or reduced sentence. Ultimately, the court retains discretion to impose a sentence up to the statutory maximum.23

Alternatively, clients may receive a deferred prosecution agreement (DPA), under which all charges are dropped after certain conditions are met, including, typically although not always, substantial cooperation by the client.24 A DPA is preferable to a cooperation agreement but far harder to obtain. Whether the client can obtain an NPA, a DPA or a cooperation agreement depends on many factors, including the usefulness of the client’s information, their culpability and role in any misconduct, and counsel’s engagement with the government.

Immunity and NPAs are exceedingly rare resolutions as, typically, the government wants a cooperating witness to be facing a sentence so as to enhance the witness’s credibility with a jury. While immunity results in no criminal consequences, an NPA generally requires payment of a fine and cooperation with the government. In deciding whether to enter into an NPA, DOJ policy provides that prosecutors should balance the cost of forgoing prosecution with the benefit of the cooperation to the public interest.25

38.3.1.4 Time pressure on cooperation decision

An important consideration in any decision to cooperate is whether there are other potential cooperating witnesses. There is often a ‘race to the courthouse’ in government investigations, where targets of investigations or co-defendants can get a better deal from the government for cooperating early. This can create significant time pressures on the client’s decision to cooperate. There may be additional time pressures where a client chooses to cooperate after they have been indicted, as the timeliness of cooperation can positively or negatively affect the sentencing recommendation and thus the court’s sentence.26

38.3.1.5 Plea agreements

If the client decides not to cooperate with the government in a criminal proceeding, the government is likely to offer the client a plea agreement. One study found that 98 per cent of criminal cases in U.S. federal court are resolved by plea agreement.27 Often, prosecutors will propose a lighter sentence or reduce or dismiss some charges in exchange for a guilty plea. In most federal plea agreements, a sentence agreed with the prosecutors is only a recommendation to a judge and is not legally binding. There is a provision of the federal rules that allows plea agreements to contain a binding sentence, but this is generally disfavoured in districts across the United States. If obtained, the court refrains from accepting the plea agreement until the sentencing hearing so that it has all the information to evaluate whether it agrees with the stipulated sentence. If the court rejects the plea agreement, the client typically has an opportunity to withdraw the plea.28

A plea agreement typically involves the prosecutors drafting a formal plea offer, which is then the subject of negotiations between the prosecutors and counsel. The factual basis of the plea agreement, which sets out the client’s unlawful conduct in detail, is often the most consequential for sentencing. Counsel should ensure that the factual basis of a plea agreement aligns with the actual evidence of the client’s conduct and be mindful that it will be used to calculate the appropriate U.S. Sentencing Guidelines range. The plea agreement may also contain a waiver of rights to appeal the sentence, as well as, in some cases, an agreement on the sentencing factors that apply under the U.S. Sentencing Guidelines. Although the U.S. Supreme Court has held that the Sentencing Guidelines are only advisory and do not bind the court,29 they are the required starting point in sentencing, and judges often give weight to the parties’ agreement on the application of sentencing factors to the client’s case.30

Before entering into a plea agreement and throughout negotiations, counsel should continue to assess the strength of the government’s case and the client’s potential defences and be willing to pull out of a plea agreement should the likelihood of success at trial outweigh the benefits of a lighter sentence in a plea agreement.

38.3.1.6 Taking the case to trial

Although a full discussion of the defences to criminal charges goes beyond the scope of this chapter, counsel should always consider the likelihood of success at trial when assessing how to respond to criminal charges. Determining whether going to trial is the right decision for a client depends on several factors, including the strength of the government’s evidence, whether any co-defendants have agreed to cooperate, the factual and legal defences to the criminal charges, the client’s risk tolerance and desire to try the case, and the potential success on appeal of any conviction. Even cases in which the government has strong evidence that results in a conviction may be overturned on legal grounds, as demonstrated in the DOJ’s recent decision to drop convictions against a former KPMG managing partner and a former Public Company Accounting Oversight Board official after the U.S. Supreme Court narrowed the applicability of wire fraud statutes.31

Counsel should advise the client on the risks of taking the case to trial, including potential enhancements to the sentence upon conviction and the additional costs and stresses of a lengthy trial and any potential appeals. At the same time, developing a robust understanding of the client’s likelihood of success at trial can inform counsel’s negotiations with government prosecutors and potentially result in better outcomes for the client even if the case ends in a plea agreement.

38.3.2 Collateral consequences of criminal conviction

Counsel should advise the client on the potential collateral consequences that may come with a criminal conviction, whether following trial or through an admission of guilt in a plea agreement. There are hundreds of potential collateral consequences for federal criminal convictions, including:

  • for non-U.S. citizens, deportation and a permanent ban from the United States;
  • revocation or suspension of licences or registrations;
  • parallel actions by other authorities within and outside the United States;
  • follow-on civil litigation by shareholders or victims;
  • loss of employment;
  • failure to clear background or other compliance checks for job and housing applications or financial transactions;
  • loss of the ability to conduct business in the United States; and travel consequences.32

38.3.3 Arrest and bail

When preventing charges or otherwise successfully resolving the case prior to an arrest is not possible, counsel will need to advise a client through arrest and bail. Arrest can occur in the United States or abroad through foreign arrest warrants issued pursuant to requests from U.S. authorities and effected through the International Criminal Police Organization, commonly known as Interpol.33 Interpol posts ‘red notices’ – which may be publicly posted or secret – to share alerts for wanted persons with its 194 member countries. Following an arrest, the member country commences extradition proceedings to determine whether to return the arrested individual to the requesting jurisdiction.

If a client who is or may be under investigation by the United States is travelling to the United States or a country with an extradition treaty with the United States, they would be well advised to carry counsel’s contact details at all times. Counsel should tread very carefully and precisely when discussing international travel since advice that could be used by a client to evade arrest or otherwise become a fugitive could result in ethical and criminal ramifications for counsel.34

If a client is arrested in the United States, counsel must prepare for the client’s first appearance in U.S. court and their bail application. U.S. law requires that courts order pretrial release unless the court determines it cannot reasonably be assured of the client’s appearance at further proceedings or release will endanger the safety of any other person or the community.35 When ordering release, a court must release a defendant ‘subject to the least restrictive further condition, or combination of conditions, that . . . will reasonably assure the appearance of the person’.36 The court is required to detain the defendant if it ‘finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community’.37

Bail packages secured by a suretor who knows the client well, property and a cash component, together with restrictions on a client’s ability to travel once released, optimise the chances of securing bail. U.S. prosecutors frequently oppose the release of defendants to their home countries, and almost always when that country has no extradition treaty with the United States, because of the perceived risk that they will not return to court; however, release may be achievable depending on the client’s charges and the country at issue. Flight risk concerns will be heightened for wealthy clients, and those with ties to a country without an extradition treaty with the United States, even if it is not their home country.38

If a client is arrested abroad, counsel should immediately arrange for experienced local counsel, especially those well versed in extradition proceedings. The availability of provisional arrest and bail pending extradition will depend on the laws of the arresting jurisdiction.

As in the United States, bail applications for U.S. extradition proceedings in non-U.S. jurisdictions should seek to mitigate flight risk concerns, which will be considerable for those with significant wealth and ties to countries without extradition treaties. Courts will commonly impose stringent conditions, such as home confinement, geographical travel restrictions and electronic monitoring, to guarantee the defendant’s continuing appearance. A client who obtains pretrial release conditions may be required to shoulder the cost of security or electronic monitoring (or both).39 Where possible, however, the benefits of looser bail conditions – significantly alleviating the punishment for a client whom the United States presumes innocent until proven guilty, as well as maximising counsel’s ability to work closely with the client in support of their defence – are worth the effort and expense.

38.3.4 Extradition

Given U.S. law enforcement’s deep and ever-increasing cooperation and coordination with foreign counterparts across the globe, the likelihood of extradition for defendants located outside the United States is high.40 Counsel representing individuals in cross-border proceedings should have a working knowledge of extradition law to ensure the client is adequately protected and advised of their rights should extradition proceedings arise.

38.3.4.1 Applicable law

To date, the United States has bilateral extradition treaties with 116 nations41 and is party to two multilateral extradition agreements.42 The United States is also party to several multilateral international conventions that require Member States either to extradite or to prosecute individuals charged with particular offences.43

The U.S. government typically relies on the assistance of foreign authorities to secure extradition by requesting it pursuant to treaties. Signatory states agree to extradite individuals within their jurisdiction who have been charged with an extraditable offence to the requesting state for trial and punishment.44 Each treaty specifically defines which offences are extraditable, with most modern treaties permitting extradition where the alleged crime is a felony in both signatory states (the ‘dual criminality’ approach).45 Treaties may also specify which offences are not extraditable, such as military offences or those punishable by the death penalty.46 Other common provisions include prohibitions on double jeopardy, limitation periods and restrictions on the extradition of nationals.47

38.3.4.2 Extradition procedure

The procedure governing extradition is determined by the applicable treaty, the responding state’s extradition laws and, in certain cases, diplomatic and foreign policy considerations. Typically, U.S. authorities must first obtain approval from the DOJ’s Office of International Affairs (OIA).48 The OIA advises prosecutors which filings are required under the applicable treaty, and the U.S. Department of State issues a formal extradition request to the responding state.49 The responding state’s judiciary then determines whether (1) extradition is permissible, with the presiding judge confirming the individual’s identity, (2) the United States has pleaded an extraditable offence supported by allegations sufficient to find probable cause that the individual committed the alleged offence, and (3) the request satisfies all other treaty provisions.50 The individual may then challenge the validity of the request on various factual and procedural grounds allowed by the law of the arresting jurisdiction, including grounds that may not be available in the United States.51 Counsel should consider submitting a declaration from U.S. counsel or other experts to educate the foreign judge on the charges, potential criminal sentence and other factors that could assist in defending extradition or supporting less restrictive bail conditions.

When the DOJ deems flight risk to be high, the defendant’s location is known and speed is of the essence,52 it may obtain a provisional arrest warrant – a request to the responding state to arrest the individual pending submission of a formal extradition request. Upon a provisional arrest, prosecutors must make a formal extradition request in the time specified in the extradition treaty (generally between one and three months).53 The conditions under which provisional arrest is permissible, and the duration for which an individual may be held pending a formal request,54 vary by treaty.

Likewise, the timeline for extradition to the United States varies depending on the responding state as well as the circumstances of the case.55 Before the covid-19 pandemic, on average, extraditions took more than a year from the time of the formal request until surrender to U.S. authorities.56 The OIA advises that extradition can take ‘many months or even years to complete’.57 And while U.S. courts have held that the Speedy Trial Clause of the Sixth Amendment to the U.S. Constitution requires extradition to be sought as soon as the defendant’s location is known, there is no redress for any delay occasioned by the requested nation’s extradition proceeding.58

A client may short-circuit this process by waiving extradition or agreeing not to contest it. Both are accomplished by filing an affidavit of consent or no contest in the responding state. Individual states may impose additional requirements to perfect waiver. Waiver may be denied under treaties that do not permit it.

38.3.4.3 Rule of specialty

Extradition treaties limit prosecution of a defendant to the offence for which extradition was granted unless (1) an offence was committed after extradition or (2) the defendant remains in the jurisdiction that requested extradition for an unreasonable time following acquittal or completion of punishment. This limitation is known as the Rule of Specialty.59 By waiving extradition, a defendant foregoes protection under the Rule. If such protection is important but the client does not wish to fight extradition, counsel may seek to preserve Rule of Specialty limitations by a written agreement with the government or by not contesting extradition, rather than consenting to it.

38.3.4.4 To fight or not to fight extradition

When deciding whether to litigate extradition, counsel should consider several key strategic factors, including (1) the strength of available extradition defences, (2) the strength of evidence in the U.S. criminal case, recognising that they are likely to receive no or limited discovery until the client is extradited,60 (3) the client’s goals, which may include wanting more time before extradition or enjoying more favourable bail conditions in the arresting nation than may be available in the United States, and (4) the client’s resources, as litigating extradition can be expensive and clients with limited resources may prefer to devote them to fighting the underlying criminal case rather than extradition.

Counsel should weigh these factors against the risk that U.S. authorities view resistance to extradition as obstruction and consider charged defendants exercising their rights under U.S. extradition treaties to be fugitives. As such, an extradition fight can impede efforts to secure bail in the United States following extradition, and foreclose or limit favourable plea offers, cooperation opportunities or beneficial sentencing recommendations. For a client who is likely to seek a cooperation plea agreement, waiving extradition will provide that client with the best opportunity to negotiate cooperation credit.

Further, counsel should evaluate the consequences of defeating extradition. The United States may bring new charges under a superseding indictment and initiate another extradition proceeding. And the client will face the risk of arrest and renewed extradition proceedings upon travel to any country with which the United States has an extradition treaty.

Regardless of which option a client chooses, it is critical to retain extradition counsel in the responding state. Extradition proceedings involve complex legal issues and have serious implications for a client’s liberty. Experienced counsel is necessary to identify potential defences, prepare extradition court filings, attend court appearances and communicate with foreign authorities.

38.3.4.5 Defences to extradition

Extradition defences are limited, as the responding state generally must grant extradition provided treaty requirements are met. The language of the treaty at issue and, sometimes, the laws of the responding jurisdiction determine available defences.61 Common defences fall into five categories:

  • Where the offence occurred: Although most treaties now require extradition regardless of where the offence occurred,62 some older treaties do not permit extradition for crimes for which the United States asserts extraterritorial jurisdiction.63 The trend against extraterritoriality may be returning, at least in the United Kingdom, where the ‘forum bar’ defence inserted into the UK Extradition Act of 2003 prevented extradition to the United States in three cases in which a substantial portion of the alleged criminal activity took place in the United Kingdom.64 A recent-high profile extradition from the United Kingdom, however, demonstrated limits to this defence where conduct in the United Kingdom has a significant effect on U.S. victims, although the extradition process took four years.65
  • Nature of the offence: In dual criminality treaties, extradition is typically denied where the alleged offence is not a crime in the responding state.66 This defence is particularly relevant in the context of the U.S. Foreign Corrupt Practices Act (FCPA), as some countries do not outlaw certain forms of payment to government officials that are prohibited as bribery under the FCPA.67
  • Political offences: Most extradition treaties include exceptions for political offences, meaning they disallow extradition for offences regarded by the requested state as being of a political character, or where the requested state has substantial grounds for believing the request was made to punish an individual on political grounds.68 Recent treaty amendments have distinguished that certain offences do not qualify as political offences, such as violent crimes, taking hostages or offences covered by a multilateral international agreement, such as an agreement regarding international terrorism.69
  • Procedural issues: Procedural defences may apply based on deficiencies in the extradition proceeding,70 such as a failure by U.S. authorities to sign a document or produce the relevant warrant.71 Treaties may also permit statute of limitations or double jeopardy defences.72
  • Humanitarian considerations: Many states deny extradition where the requesting state may pursue the death penalty73 or has inhumane prison conditions.74 Counsel might consider whether an expert on prison conditions might support a humanitarian defence. The U.S. government can successfully defeat humanitarian defences by providing assurances to the foreign authority, such as prosecutors agreeing they will not seek the death penalty.75

38.3.4.6 Appealing extradition orders

The United States may make unlimited attempts to renew an extradition request,76 even when based on the same facts as an earlier, denied request and regardless of whether the prior request was denied on the merits or procedural grounds. The government has broad discretion on what evidence can be submitted with a renewed request, as subsequent requests may be based exclusively on evidence submitted in the initial request or entirely on supplementary evidence.77 Renewed requests are generally heard by a different judicial officer and reviewed de novo.78

Extradition orders are only appealable as permitted by local law. In the United Kingdom, for example, extradition decisions are appealable by both the requested individual and the requesting state.79

Clients may also challenge an adverse extradition ruling by petitioning for a writ of habeas corpus in the United States, although such petitions are rarely successful. Habeas review is limited to three enquiries: (1) the adequacy of the trial judge’s jurisdiction; (2) whether the relevant treaty covers the offence; and (3) whether there was sufficient evidence to support probable cause.80 The court’s ruling on a habeas petition is appealable,81 and may stay the foreign extradition proceeding pending appeal.82

38.3.5 Asset freezing, seizure and forfeiture

Where such issues are present, asset freezing, seizure and forfeiture are not only critical aspects of defending the client, but can often materially affect the resources available to defend the client as to the underlying charges. In criminal proceedings, the DOJ may obtain a pre-indictment or pretrial restraining order to freeze assets,83 and pursue criminal or civil forfeiture of tainted assets (i.e., any property derived from the criminal conduct) or substitute equivalent assets.84 The government must have probable cause to believe the property constitutes proceeds of crime or was used during the commission of a crime, although an indictment will suffice for establishing probable cause.85 Prosecutors must include criminal forfeiture allegations in the indictment or criminal information to put the defendant on notice.86 Although the government cannot obtain a final order of forfeiture until sentencing following conviction,87 it can seek to freeze the assets until that time (although the court can release funds to pay attorneys’ fees).

The DOJ may also file an in rem civil action against property derived from or used to perpetrate the offence,88 and will usually seize the property before the court’s entry of a civil forfeiture order.89 Civil forfeiture does not require a criminal conviction, and the government can seize property before or during criminal proceedings.90 Similarly, the U.S. SEC may freeze assets through a temporary pretrial restraining order to ensure that funds for a future disgorgement order are available.91

If the assets subject to civil or criminal forfeiture are unavailable because of the action or inaction of the client, U.S. authorities can seize substitute assets to satisfy the forfeiture order.92 Counsel should fully understand the client’s financial situation in cases where forfeiture is possible and discuss with clients the effect that substitute asset forfeiture may have on joint assets, such as a home or other property shared with a spouse.93

The law of civil forfeiture has been the subject of significant criticism and recent legislative efforts to revamp it, which merit continued tracking.94 Prominent criticisms of civil forfeiture include concerns about lower due process standards for seizure of assets and potential abuse by law enforcement, who often receive most or all of the proceeds of forfeited property.

38.4 Common issues in cross-border investigations or proceedings

38.4.1 Preservation of evidence

U.S. law makes it a felony to alter or destroy evidence with the intent to impede an ongoing investigation.95 Counsel should accordingly instruct clients on the need to preserve evidence in their possession, custody or control.

38.4.2 Interviewing witnesses

Counsel should also instruct clients not to communicate with third parties regarding the matters under investigation and, in most cases, to cease communications with co-defendants entirely. Discussions with potential witnesses, whether co-defendants or otherwise, within the scope of a criminal investigation may be viewed by prosecutors as witness tampering, leading to severe penalties.96

Moreover, client communications with witnesses are likely to be discovered by the government. When interviewing those with knowledge of the facts under investigation, prosecutors routinely enquire in detail about all their communications with the defendant.

38.4.3 Privilege laws across jurisdictions

Counsel operating outside the United States must consider whether client communications will be deemed privileged and protected from disclosure to regulators and other parties. Although these communications ordinarily are protected in the United States, analogous protections are not always available in foreign jurisdictions. In China, for example, there is no doctrine of legal privilege.97 And although the European Union provides for legal professional privilege, it is limited compared with its U.S. cousin, covering only counsel who are admitted to the bar in one of the Member States of the European Union.98 To cite another example, communications with in-house counsel conducting an internal investigation are not privileged in many European countries, which protect only written communications between clients and external counsel.99 To navigate varying privilege rules, counsel should consult with local counsel in the relevant jurisdictions.

For communications between U.S. counsel and a foreign client, U.S.courts determine whether privilege applies by applying a ‘touch base’ test, applying the law of the country that has the most compelling interest in whether the communications should remain confidential.100 Communications relating to U.S. legal proceedings or advising on U.S.law ‘touch base’ with the United States and are thus protected by its privilege laws, even when they involve foreign attorneys. Those that relate to foreign legal proceedings or foreign law are generally governed by the law of that jurisdiction. Counsel should document the purpose of their communications as representing the client in a U.S.investigation or proceeding as early as possible.

38.4.4 Foreign restrictions on information transfer

Data protection laws can affect counsel’s ability to access materials on behalf of clients in cross-border representations. For example, Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) (GDPR), which came into force in 2018, significantly changed data privacy law in Europe and created new restrictions on the transfer of data. Although the United States and the European Commission entered into a new Trans-Atlantic Data Privacy Framework in 2022 to re-establish the legal mechanism for transfers of personal data from EU Member States to the United States,[101] limitations apply and U.S.counsel may need to review certain material in a foreign jurisdiction.102 Transfer of data is possible under the GDPR where a ‘derogation’ applies, such as when the transfer is necessary for the establishment, exercise or defence of legal claims, which commonly applies in the context of criminal or other regulatory investigations.103

Other countries, such as Switzerland, France and China, have broad data protection laws that can impede the ability of counsel for both the defendant and the government to obtain evidence located in each jurisdiction.104 In a recent trial of a Chinese semiconductor company, the court postponed proceedings for more than a year when the company sought testimony from witnesses in China, which required permission from the Chinese government under Chinese law.105 Counsel should consult with local and specialist counsel to navigate data privacy laws that could expose clients (and counsel) to sanctions for violations of these regimes.106

38.4.5 Fifth Amendment considerations

The waiver of Fifth Amendment rights is an essential consideration in parallel foreign proceedings. Any voluntary testimony a client gives to a foreign authority may be used in a present or future criminal or civil proceeding in the United States, although there are protections in the United States on the use of testimony compelled in a foreign proceeding.[107] Counsel should advise the client on the ramifications of testifying in a foreign proceeding and preserve Fifth Amendment assertions on the record during a compelled interview, even if the right is not available in the foreign proceeding.

38.4.6 Mutual legal assistance treaties and other requests for international assistance

The United States has MLATs or similar agreements with approximately 70 states and the European Union, allowing it to enlist the investigatory authority of those nations to procure evidence.108 Where MLATs do not exist, the DOJ employs letters rogatory to request assistance from another country, and sometimes diplomatic backchannel communications (although records obtained through this latter process may not be usable as evidence at trial). The OIA negotiates and implements MLATs, administers mutual legal assistance operations and coordinates incoming and outgoing requests for inter­national assistance.

The MLAT process is slow, often taking more than a year between the time a request is made and testimony is taken or documents produced.109 For this reason, prosecutors or other authorities requesting mutual legal assistance from a foreign authority often petition the U.S. court to suspend the running of the statute of limitations during the pendency of a request.110 Courts routinely grant these requests, which require showing by a preponderance of the evidence that the requesting authority made an official request pursuant to an MLAT, and it reasonably appears that the evidence is or was in a foreign country.111

Foreign law enforcement officials typically conduct MLAT interviews under local procedural rules. Thus, certain protections available in the United States may not apply, such as the right to counsel, protection from compelled testimony or the attorney–client privilege. Local counsel should be fully engaged in navigating the interview process in the foreign jurisdiction.

38.4.7 Counsel selection

In cross-border investigations or proceedings involving multiple parties, especially when a corporate entity is implicated, a client may be presented with the decision of whether to engage independent counsel or join a joint or pool counsel representation with an employer or colleagues (or both). Although joint representation by company or pool counsel is often the most economical and practical choice for employers, it is not always the right choice for an individual client. Conflicts can arise during joint representations, particularly where the client may give testimony that contradicts a jointly represented employer’s position or creates liability for the employer,112 and clients should be counselled about any potential conflicts.

Whether they are represented by pool, company or individual counsel, clients may also benefit from engaging specialist counsel to address employment law questions or issues of foreign law.

38.5 Client-centred lawyering

The human cost of criminal proceedings is nearly always a paramount consideration for the client. Counsel should remember that these matters can be traumatic for clients and their families, with potential prison sentences carrying enormous consequences for the client and their loved ones. Counsel should monitor the client’s physical and mental health throughout and discuss health issues early and often.

Footnotes

1. Jeffrey Brown, Roger Burlingame and Hartley West are partners and Ryan Dykhouse is an associate at Dechert LLP. The authors wish to thank Victoria Borges King for her contributions to this chapter.

2. U.S. Department of Justice (DOJ), ‘Justice Department, Federal Trade Commission and European Commission Hold Third U.S.-E.U. Joint Technology Competition Policy Dialogue’ (30 Mar. 2023).

3. ibid.; James Comer, Chairman, Committee on Oversight and Accountability, U.S. House of Representatives, Letter to Lina Khan and others (21 Aug. 2023).

4. DOJ, ‘United States, Mexico, and Canada Launch Joint Initiative to Detect Collusive Schemes Seeking to Exploit the 2026 FIFA World Cup’ (22 Sept. 2023).

5. DOJ, Office of Public Affairs (OPA), ‘Principal Associate Deputy Attorney General Marshall Miller Delivers Remarks at the Global Investigations Review Annual Meeting’ (21 Sept. 2023).

6. DOJ, Justice Manual (Jan. 2020) (Justice Manual), § 9-11.151, (providing DOJ definitions of ‘witness’, ‘subject’ and ‘target’).

7. See, e.g., DOJ, OPA, ‘Deputy Attorney General Lisa Monaco Delivers Remarks at American Bar Association National Institute on White Collar Crime’ (2 Mar. 2023).

8. Gilman v. Marsh & McLennan Companies, Inc., 826 F.3d 69 (2d Cir. 2016) (holding that company requests for interviews were reasonable and thus the company had cause to fire two employees who refused to submit to interviews).

9. The Fifth Amendment right against self-incrimination protects a criminal defendant or potential criminal defendant from being compelled to answer questions that could be incriminating in a criminal prosecution. To be self-incriminating, the compelled answers must pose a ‘substantial and “real,” and not merely [a] trifling or imaginary, hazard’ of criminal prosecution. Marchetti v. United States, 390 U.S. 39, 53 (1968).

10. Garrity v. New Jersey, 385 U.S. 493, 497 (1967); see also United States v. Connolly, No. 16 C.R. 0370 (CM), 2019 WL 2120523, at *10 (S.D.N.Y. May 2, 2019).

11. Law of the People’s Republic of China on International Mutual Legal Assistance in Criminal Matters, Art. 9 (last updated 26 Oct. 2018), translation available here.

12. See infra ‘MLATs and other requests for international assistance’.

13. In re Three Grand Jury Subpoenas Duces Tecum Dated January 29, 1999, 191 F.3d 173, 178 (2d Cir. 1999) (citing U.S. v. Doe, 465 U.S. 605, 612-14 (1984)).

14. U.S. Const. amend. V; cf. United States v. Saechao, 418 F.3d 1073 (9th Cir. 2005).

15. United States v. Allen, 864 F.3d 63 (2d Cir. 2017) (reversing convictions of two Rabobank traders where the US criminal case used the trader’s compelled testimony to the UK Financial Conduct Authority in the LIBOR manipulation investigation, holding that the Fifth Amendment ‘prohibits the use and derivative use of compelled testimony in an American criminal case against the defendant who provided that testimony’).

16. Justice Manual: Criminal Resource Manual (2020) (Criminal Resource Manual), § 267, (warning that a telephone call, letter or unauthorised visit to an overseas witness could violate national sovereignty and lead to denial of access to evidence or even the arrest of a law enforcement agent abroad).

17. See, e.g., United States v. Shelton, 2021 WL 1937260 (7th Cir. May 14, 2021).

18. See, e.g., Sims v. Lakeside School, No. C06-1412RSM, 2007 U.S. Dist. LEXIS 69568, at *4–5 (W.D. Wash. Sept. 20, 2007).

19. See, e.g., DOJ, OPA, ‘Deputy Attorney General Lisa O. Monaco Delivers Remarks on Corporate Criminal Enforcement’ (15 Sept. 2022).

20. United States Sentencing Commission, ‘Guidelines Manual 2021’ (2021 Sentencing Guidelines).

21. See United States v. Rosemond, 841 F.3d 95 (2d Cir. 2016).

22. See 2021 Sentencing Guidelines, § 5K1.1.

23. See ibid. (explaining that a court ‘may depart from the guidelines’ in the case of a defendant’s substantial assistance to authorities).

24. See, e.g., Enforcement of the FCPA – Criminal Procedures – Deferred Prosecution Agreements, 13 Business and Commercial Litigation in Federal Courts, § 134:34 (4th edition).

25. Justice Manual, § 9-27.600 (June 2023) .

26. See 2021 Sentencing Guidelines, § 5K1.1(5).

27. Carrie Johnson, ‘The vast majority of criminal cases end in plea bargains, a new report finds’, NPR (22 Feb. 2023).

28. See Fed. R. Crim. P. 11(c)(1)(C).

29. See United States v. Booker, 543 U.S. 220, 226-27 (2005).

30. See Justice Manual, § 9-27.400 (2023).

31. Stephen Foley, ‘Court moves to drop fraud convictions in KPMG US audit scandal’, Financial Times (3 Aug. 2023).

32. See DOJ, ‘Federal Statutes Imposing Collateral Consequences Upon Conviction’ (13 Nov. 2006), also see here. 

33. See Justice Manual, § 9-15.635 (2018); see also Criminal Resource Manual, § 611 (2020)

34. See New York State Bar Association, Committee on Professional Ethics, Opinion 529 (18 Feb. 1981); 18 U.S.C. § 1071 (Concealing a Person from Arrest); 18 U.S.C. § 1503 (Obstruction of Justice)

35. See Bail Reform Act, 18 U.S.C. § 314, paras. (b) and (c)(1)(B).

36. id., § 3142(e).

37. ibid.

38. See, e.g., United States v. Valdivia, 104 Fed. App’x. 753, 754–55 (1st Cir. 2004) (relying on the defendant’s ‘resources and foreign contacts’ and ‘established ties outside the United States’ to conclude that he posed a flight risk); United States v. Aitken, 898 F.2d 104, 107 (9th Cir. 1990) (concluding that the defendant was a flight risk in part because he had ‘access to large sums of cash’).

39. See, for example, United States v. Madoff, 586 F. Supp. 2d 240, 243–44 (S.D.N.Y. 2009); United States v. Sabhnani, 493 F.3d 63, 80 (2d Cir. 2007) (‘The defendants shall pay all costs associated with electronic monitoring.’).

40.  DOJ, Office of the Inspector General Evaluation and Inspections Division, ‘Review of the Office of International Affairs’ Role in the International Extradition of Fugitives’ (Mar. 2002), (finding that, from 1990 to 2001, the Office of International Affairs opened between 670 to 950 extradition cases each year).

41. See U.S. Dep’t of State, ‘Treaties in Force: A List of Treaties and Other International Agreements of the United States in Force on January 1, 2020’ (Treaties in Force 2020); U.S. Dep’t of State, ‘Treaties in Force: Supplemental List of Treaties and Other International Agreements’ (2023) (Treaties in Force 2023 Supplement); Congressional Research Service, ‘Extradition To and From the United States: Overview of the Law and Contemporary Treaties’ (updated 4 Oct. 2016)

42. See Inter-American Convention on Extradition, 26 Dec 1933, 49 Stat. 3111; Extradition Agreement with the European Union, 25 June 2003, Senate Treaty Doc. No. 109-14.

43. See, e.g., United Nations Convention for the Suppression of Unlawful Seizure of Aircraft, Art. 8, 16 Dec. 1970, 860 U.N.T.S. 105; United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Art. 6, 20 Dec. 1988, 1582 U.N.T.S. 95.

44. Ronald J Hedges, Federal Judicial Center International Litigation Guide, ‘International Extradition: A Guide for Judges 1’, 4 (2014).

45. Criminal Resource Manual, § 603.

46. See, e.g., Extradition Treaty Between the United States of America and the United Kingdom of Great Britain and Northern Ireland, 31 Mar. 2003, T.I.A.S. 07-426 (UK Extradition Treaty), Art. 4, paras. 1, 2.

47. See, e.g., Extradition Treaty Between the United States of America and France, 23 Apr. 1996, T.I.A.S. 02-201 (France Extradition Treaty), Art. 3(1); Extradition Treaty Between the United States of America and Germany, 20 June 1978, 32 U.S.T. 1485 (Germany Extradition Treaty), Art. 7(1).

48. Justice Manual, § 9-15.210 (2018). For additional detail on the extradition process from the diplomatic perspective, see the U.S. Department of State’s Foreign Affairs Manual at 7 FAM 1620.

49. id., § 9-15.300 (2018).

50. See Hedges, supra note 44, at 10–11.

51. See Fed. R. Crim. P. 1(a)(5); Fed. R. Evid. 1101(d)(3); Collins v. Loisel (Collins II), 259 U.S. 309, 317 (1922).

52. Criminal Resource Manual, § 615.

53. Modern US extradition treaties provide for provisional arrest. S. Exec. Rep. No. 106-26, at 31 (2000) (report from US Senate Committee on Foreign Relations); see, e.g., Extradition Treaty Between the United States of America and Canada, 3 Dec. 1971, 27 U.S.T. 983 (Canada Extradition Treaty), Art. 11(1).

54. See Justice Manual, §§ 9-15.210, 9-15.230 (2018); see, e.g., Canada Extradition Treaty, supra note 53, at Art. 11(1) (requiring release ‘upon the expiration of forty-five days from the date of his arrest’ if an extradition request is not received within that time).

55. Justice Manual, § 9-15.400 (2018).

56. Jonathan Masters, ‘What is Extradition?’, Council on Foreign Relations (last updated 8 Jan. 2020).

57. DOJ, ‘Frequently Asked Questions Regarding Extradition’ (27 Nov. 2020).

58. United States v. Blanco, 861 F.2d 773, 780 (2d Cir. 1988), cert. denied, 489 U.S. 1019 (1989); United States v. Pomeroy, 822 F.2d 718, 720 n.3-4 (8th Cir. 1987); United States v. Walton, 814 F.2d 376, 380 (7th Cir. 1987); see also Criminal Resource Manual, § 601-99.

59. See United States v. Rauscher, 119 U.S. 407 (1886); United States v. Lopesierra-Gutierrez, 708 F.3d 193, 205-06 (D.C. Cir. 2013); United States v. Lomeli, 596 F.3d 496, 501 (8th Cir. 2010).

60. See Quinn v. Robinson, 783 F.2d 776, 817 n.41 (9th Cir. 1986), cert. denied, 479 U.S. 882 (1986); see also Oen Yin-Choy v. Robinson, 858 F.2d 1400, 1407 (9th Cir. 1988).

61. See UK Extradition Act 2003, c. 41, §§ 13, 81, 87 (providing various defences to extradition, including on human rights and political grounds).

62. See, e.g., Extradition Treaty Between the Government of the United States of America and the Government of the Hashemite Kingdom of Jordan, 28 Mar. 1995, Senate Treaty Doc. No. 104-3, Art. 2(4); Extradition Treaty Between the United States of America and Austria, 8 Jan. 1998, T.I.A.S. 12916, Art. 2(6); Extradition Treaty Between the United States of America and Luxembourg, 1 Oct. 1996, T.I.A.S. 1280, Art. 2(1); Extradition Treaty Between the United States of America and Hungary, 1 Dec. 1994, T.I.A.S. 97-318, Art. 2(4); Extradition Treaty Between the United States of America and the Bahamas, 9 Mar. 1990, T.I.A.S. 94-922, Art. 2(4); France Extradition Treaty, Art. 2(4).

63. Criminal Resource Manual, § 603.

64. See UK Extradition Act 2003, s.83A(2); Love v. Government of USA [2018] EWHC 172 (Admin); Scott v. Government of USA [2018] EWHC 2021 (Admin); Government of USA v. McDaid [2020] EWHC 1527 (Admin).

65. Lynch v. Government of the United States [2023] EWHC 876 (Admin), §§ 88-127; see also Jane Croft and Tim Bradshaw, ‘Autonomy founder Mike Lynch extradited to US’, Financial Times (12 May 2023).

66. See, e.g., UK Extradition Treaty, Art. 2(1).

67. See Superintendent of Her Majesty’s Foxhill Prison & U.S. v. Kozeny, Privy Council Appeal No. 0073, § 53 (Judicial Comm. of the Privy Council, 28 Mar. 2012) (BAH) (Bahamian court ruled defendant could not be extradited because the bribery charges against him were for non-criminal acts in the Bahamas).

68. Germany Extradition Treaty, Art. 4.

69. id., Art. 4(3); UK Extradition Treaty, Art. 4(2) (listing specific offences not considered political offences, including head of state assassination attempts and taking hostages); Extradition Treaty Between the Government of the United States of America and the Government of the Republic of Korea, 9 June 1998, Senate Treaty Doc. No. 106-2, Art. 4(1) (exempting offences covered by multilateral international agreements).

70. Justice Manual, §§ 9-15.240, 9-15.250 (2018).

71. id., § 9-15.240.

72. See In re Extradition of Chan Seong-I, 346 F. Supp. 2d 1149, 1157 (D.N.M. 2004); Michael John Garcia and Charles Doyle, Cong. Research Serv., 98-958, ‘Extradition To and From the United States: Overview of the Law and Recent Treaties’, 15–16 (2010), (citing extradition treaties that include provisions addressing lapse of time); UK Extradition Treaty, Arts. 2, 5, 6.

73. See, e.g., UK Extradition Treaty, Art. 7.

74. See e.g., Tom Saunders, ‘Irish judge blocks extradition because Scottish prisons are “inhumane”’, The Times (1 July 2023).

75. See United States v. Burns [2001] 1 S.C.R. 283, 2001 S.C.C. 7 (Supreme Court of Canada refusing to extradite two individuals who allegedly confessed to a triple murder unless US authorities provided assurances that the individuals would not be subject to the death penalty); see also Canada Extradition Treaty, Art. 6; Extradition Treaty Between the United States of America and the United Mexican States, 4 May 1978, 31 U.S.T. 5059, Art. 8 (requiring assurances that US authorities will not seek the death penalty).

76. See Collins v. Loisel, 262 U.S. 426, 429 (1923) (holding that double jeopardy does not apply to extradition decisions).

77. See, e.g., Hooker v. Klein, 573 F.2d at 1366 (9th Cir. 1978) (the government’s renewal of its extradition request was valid despite the first request being ‘denied following an extensive evidentiary hearing and full consideration of the merits of the case by an extradition court’); accord Mirchandani v. United States, 836 F.2d 1223, 1226 (9th Cir. 1988); In re Extradition of Tafoya, 572 F. Supp. 95, 97 (W.D. Tex. 1983); cf. Ahmad v. Wigen, 726 F. Supp. 389, 397 (S.D.N.Y. 1989), aff’d, 910 F.2d 1063 (2d Cir. 1990); see also Ntakirutimana v. Reno, 184 F.3d 419, 423 (5th Cir. 1999), cert. denied, 528 U.S. 1135 (2000).

78. See, e.g., Skaftouros v. United States, 667 F.3d 144, 157 (2d Cir. 2011); Hooker v. Klein, 573 F.2d 1360, 1369 (9th Cir. 1978).

79. GOV. UK, ‘Extradition: processes and review’. 

80. See 28 U.S.C. § 2241; see, e.g., Ahmad, 910 F.2d at 1065. John T Parry, ‘The Lost History of International Extradition Litigation’, 43 Va. J. Int’l L. 93, 97 (2002).

81. Criminal Resource Manual, § 622.

82. ibid.

83. 18 U.S.C. § 983(j).

84. See, e.g., 18 U.S.C. §§ 981, 982; 21 U.S.C. § 853(p).

85. See 21 U.S.C. 853(e)(2); Kaley v. United States, 571 U.S. 320, 328 (2014) (citing Gerstein v. Pugh, 420 U.S. 103, 117 n.19 (1975)).

86. See Fed. R. Crim. P. 32.2(a).

87. See 18 U.S.C. §§ 982(a), 1963(e); Fed. R. Crim. P. 32.2(b)(1)(A).

88. See id., §§ 983(a)(4), 984(a)(1), 985(c); see also id., § 983(a)(1); 19 U.S.C. § 1607.

89. id., § 985(b)(1).

90. See United States v. Bajakajian, 524 U.S. 321, 326 (1998).

91. See, e.g., S.E.C. v. One or More Unknown Traders in the Securities of Onyx Pharmaceuticals, Inc., 296. F.R.D. 241, 254 (S.D.N.Y. 2013) (citing S.E.C. v. Unifund S.A.L., 910 F.2d 1028, 1041 (2d Cir. 1990)).

92. 21 U.S.C. § 853(p).

93. See, e.g., United States v. Contorinis, 692 F.3d 136, 146 (2d Cir. 2012) (‘forfeiture in criminal proceedings . . . cannot be imposed upon innocent owners’); von Hofe v. United States, 492 F.3d 175, 180 (2d Cir. 2007) (holding that, in a civil forfeiture action, an innocent owner may raise an ‘innocent owner defense’ where the claimant ‘did not know of the conduct giving rise to the forfeiture, or upon learning of the conduct giving rise to the forfeiture, did all that reasonably could be expected under the circumstances to terminate such use of the property’); but see United States v. Butler, 543 F. App’x 95, 97 (2d Cir. 2013) (finding that the wife of the defendant had no property claim over bank accounts in the defendant’s name into which she deposited money).

94. In June 2023, the Judiciary Committee of the US House of Representatives unanimously approved legislation to overhaul civil asset forfeiture. See Joe Davidson, ‘Bipartisan panel votes to limit police power to seize property’, Washington Post (23 June 2023); see also H.R. 1525, FAIR Act of 2023. The law, if passed, would prohibit administrative forfeitures, increase the burden of proof the government faces in successfully seizing assets and prevent law enforcement agencies from keeping the proceeds of civil forfeiture, among other provisions. The US House has not scheduled the bill for a full vote, but the bipartisan nature of the legislation makes it likely to pass in some form in the not-too-distant future. The US Supreme Court was due to hear a case in November 2023 that could affect civil forfeiture, although focused primarily on the due process afforded in state law enforcement forfeiture actions. See Culley v. Marshall, No. 22-585, Brief for Petitioners, and Brief for Respondent Marshall.

95. See 18 U.S.C. § 1519.

96. 18 U.S.C. § 1512.

97. Richard Bartlett, ‘A Lawyer’s Guide to Working in China’, China Law Insight (15 Nov. 2017).

98. Patrick Doris and Steve Melrose, ‘Privilege: European Union’, G.I.R. Know-how (2016); but see Case C 694/20, Orde van Vlaamse Balies, EU:C:2022:963, (Court of Justice of the European Union clarifying that the legal professional privilege protects all communications between EU-qualified counsel and a client).

99. See Case C-550/07 P, Akzo Nobel Chemicals v. Commission (14 Sept. 2010).

100. See Mangouras v. Boggs, 980 F.3d 88, 99 (2d Cir. 2020); see also Knauf Insulation, LLC v. Johns Manville Corp., 2019 WL 4832205, at *2 (S.D. Ind. Oct. 1, 2019); Cadence Pharmaceuticals, Inc. v. Fresenius Kabi USA, LLC, 996 F. Supp. 2d 1015, 1019 (S.D. Cal. 2014) (applying ‘touch base’ analysis to determine the choice of privilege law in a patent case because federal common law includes ‘choice of law questions’); Golden Trade, S.r.L. v. Lee Apparel Co., 143 F.R.D. 514, 522 (S.D.N.Y. 1992) (applying ‘touch base’ analysis in a patent case).

101. White House, Press Release, ‘FACT SHEET: United States and European Commission Announce Trans-Atlantic Data Privacy Framework’ (25 Mar. 2022); see also European Commission, Press Release, ‘European Commission and United States Joint Statement on Trans-Atlantic Data Privacy Framework’ (25 Mar. 2022).

102. See, e.g., France’s Law 80-538 of 16 July 1980, Relating to the Communication of Economic, Commercial or Technical Documents or Information to Foreign Natural or Legal Persons, Journal Officiel de la République Française, 17 July 1980, Art. 1A (Fr.).

103. See European Data Protection Board, ‘Guidelines 2/2018 on derogations of Article 49 under Regulation 2016/679’ (25 May 2018).

104. See, e.g., Swiss Criminal Code (Schweizerisches Strafgesetzbuch), 21 Dec. 1937, Art. 349; French Law No. 68-678 (dated 26 July 1968); China: Data Security Law 2021; Personal Information Protection Law 2018; Law of the People’s Republic of China on International Mutual Legal Assistance in Criminal Matters, supra note 11; Cybersecurity Law 2017; Guarding State Secrets Law 2014.

105. United States v. United Micron Technologies, etc., Case 3:18-cr-00465-MMC, Dkt. No. 498, (N.D. Cal. June 15, 2022) (court issuing letter rogatory to the Chinese government requesting remote testimony of Chinese-based defence witnesses, explaining testimony is necessary for trial).

106. See, e.g., Swiss Criminal Code, 21 Dec. 1937, SR 757 (1938), as amended by Gesetz, 4 Oct. 1991, AS 2465 (1992).

107. See supra note 15.

108. See, generally, Treaties in Force 2020, supra note 41; Treaties in Force 2023 Supplement, supra note 41; Agreement on mutual legal assistance between the European Union and the United States of America, 16 Jan. 1998, T.I.A.S. 12923.

109. See, e.g., ADB-OECD (2017), Anti-Corruption Initiative for Asia and the Pacific, ‘Mutual Legal Assistance in Asia and the Pacific: Experiences in 31 Jurisdictions’, 15–16, (survey of countries in the Asia-Pacific region finding that most requests are fulfilled between six months and a year after they are made, but some requests are taking more than four years).

110. 18 U.S.C. § 3292.

111. See, e.g., T Markus Funk, Federal Judicial Center International Litigation Guide, ‘Mutual Legal Assistance and Letters Rogatory: A Guide for Judges’, 15 (2014).

112. See also American Bar Association, ‘Model Rules of Professional Conduct’, R. 1.13 Cmt. 10 (2018) (providing that investigating counsel should advise employees whose interests may be adverse to the corporation that they ‘may wish to obtain independent representation’).

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