Global investigations surrounding the London Interbank Offered Rate (commonly known as LIBOR) have made headlines in recent months. Frequent news stories report that government agencies in multiple countries are cooperating with each other, including the U.S. Department of Justice (Fraud Section and Antitrust Division) (collectively, DOJ), the U.S. Securities and Exchange Commission, the U.S. Commodity Futures Trading Commission, the U.K. Financial Services Authority (FSA), the U.K. Serious Fraud Office, and the Canadian Competition Bureau, among others.

Under U.K. regulations, the FSA, which is the lead agency investigating LIBOR in the United Kingdom, has the power to compel testimony from witnesses at the request of foreign regulators. Although compelled testimony cannot be used in the United Kingdom to criminally prosecute compelled witnesses, there is very little guidance about whether (and to what extent) foreign prosecutorial and regulatory agencies, including the DOJ, can use such testimony in evidentiary proceedings. That issue is critical in any parallel investigation involving the FSA and U.S. regulators.

This article begins by examining the FSA’s power to compel testimony from witnesses and the procedure under which foreign regulators can seek the FSA’s assistance. Next, the article examines how U.S. courts might treat evidence obtained through such a procedure based on existing precedent. Finally, the article provides several practice pointers to help defense counsel navigate this thorny area.1

FSA’s Power to Compel

In conducting its investigations, the FSA has the power to compel testimony from witnesses in exchange for immunity.2 Failure to comply with a compelled information request is punishable by up to two years’ imprisonment.3 In addition, §169 of the U.K. Financial Services and Markets Act 2000 authorizes the FSA to appoint an investigator (FSA investigator) to investigate matters at the request of foreign regulators; the FSA can compel testimony pursuant to §169 in tandem with its own investigation of the same facts.

In a §169 interview, among other things, the FSA investigator has the power to compel witnesses to attend and to answer questions. Although the FSA investigator retains “control” over compulsory interviews, the investigator may “permit a representative of [the foreign] regulator to attend, and take part in, any interview.”4 Compulsory interviews must be preceded by a warning stating that the witness must answer any questions, including those asked by foreign regulators.5

In the United States, although regulators can compel witnesses to attend administrative and court proceedings, they cannot, because of the Fifth Amendment, compel testimony that may be incriminatory without granting immunity. Although a negative inference can be drawn in civil proceedings when a witness invokes the Fifth Amendment, there is no such negative inference in criminal proceedings.6 In limited circumstances, U.S. regulators can compel incriminatory testimony, but only in exchange for use and derivative use immunity.7 Therefore, the use of §169 compelled testimony in U.S. proceedings would violate the Fifth Amendment and provide U.S. regulators with additional power they do not possess in this jurisdiction.

‘Kastigar v. United States’

The unfairness of permitting U.S. prosecutors to use testimony compelled under §169 is supported by the U.S. Supreme Court’s decision in Kastigar v. United States.8 Although no court has directly addressed this issue, Kastigar comes close. In Kastigar, the petitioner challenged the constitutionality of 18 U.S.C. §§6002-6003, which permits the DOJ to compel testimony in exchange for use and derivative use immunity.9 The Supreme Court upheld the immunity statute but placed an affirmative duty on U.S. prosecutors to prove that any evidence used against an immunized witness is “derived from a legitimate source wholly independent of the compelled testimony.”10 Because of that burden (which is very difficult to meet),11 U.S. prosecutors carefully restrict instances of compelled testimony from witnesses with potential criminal exposure.12 Although Kastigar involved the DOJ, the Supreme Court’s rationale is equally applicable to civil regulators.13

Although courts have found that foreign authorities cannot bind U.S. prosecutors by promising immunity,14 the public policy rationale underlying Kastigar suggests that U.S. regulators should not be permitted to compel testimony abroad when they could not do so here. If, pursuant to §169, U.S. regulators participate in the FSA’s compelled interviews, the defense should move, based on a Kastigar theory, to compel the DOJ to prove that any evidence used against an FSA-immunized witness is derived from independent sources. If the working relationship between the U.S. and U.K. authorities is close, which is often the case in parallel investigations, that burden may be difficult for the government to overcome.

The Joint Venture Doctrine

Another argument against the use of §169 compelled testimony in U.S. criminal proceedings is the “joint venture” doctrine. Under that doctrine, courts may suppress statements elicited by foreign law enforcement officials where U.S. law enforcement officials “actively” or “substantially” participated in an investigation that violated the subject’s Fifth Amendment rights.15 In the interrogation context, relevant considerations include the role that U.S. authorities played in the arrest and investigation,16 the extent to which the U.S. authorities participated in the interrogation,17 how much the questions sought information about violations of U.S. law,18 and whether a defendant can prove that U.S. authorities intended to circumvent constitutional protections.19 Although the joint venture doctrine typically applies when U.S. law enforcement officials work hand-in-hand with foreign law enforcement officials, there does not appear to be a reason why the doctrine should not also apply to civil regulators, particularly where there are overlapping criminal and civil investigations.

A decision of the U.S. Court of Appeals for the Fourth Circuit illustrates the application of the joint venture doctrine. In United States v. Abu Ali, the Federal Bureau of Investigation sought permission from officials in Saudi Arabia to join in questioning a Saudi detainee on alleged plans to engage in terrorism. The Saudi officials denied the request but allowed the FBI to propose questions in writing, of which all but six were rejected, and permitted the FBI to watch the interrogation through a one-way mirror.

By a vote of 2 to 1, the Fourth Circuit held that there was no “joint venture” because the Saudi officials were always in control of the investigation. The circumstances of Abu Ali are, however, readily distinguishable from compelled testimony under §169. In the context of a §169 interview, even though an FSA investigator may technically retain “control” of the interview, representatives of foreign regulators are permitted to take a much more active role than the FBI agents in Abu Ali, including assisting in the preparation for the interview and asking questions directly of the witness.20 Moreover, if the respective agencies are working closely in a parallel investigation, the joint venture doctrine would have more natural application than in Abu Ali.

Coercion

The Fifth Amendment also prohibits U.S. prosecutors from relying on confessions that have been coerced by foreign officials.21 Although much of the case law in this area focuses on extreme forms of mistreatment (including deprivation of food and sleep, isolation, and violence),22 other cases have found that legal compulsion also satisfies the coercion standard. The Supreme Court has found that speech compelled by a grant of immunity under threat of contempt is not voluntary and therefore inadmissible in a criminal proceeding.23

In Adams v. Maryland, the petitioner was summoned before a Senate Committee to testify under threat of contempt and he could not assert his Fifth Amendment privilege because he was granted immunity from criminal prosecution. The court determined that the petitioner was “not a volunteer” because “[h]ad he not appeared he could have been fined and sent to jail,” and found that the Fifth Amendment protected him from the use of such incriminatory testimony.24 Therefore, an additional argument exists that FSA-compelled testimony pursuant to §169 is sufficiently coercive to violate the Fifth Amendment, rendering it inadmissible in U.S. criminal proceedings.

Practice Pointers

The foregoing makes clear that defense counsel may have multiple legal arguments to challenge the use of §169 compelled testimony in U.S. criminal proceedings. But there are unfortunately very few practical options available to defense counsel representing clients who have been compelled by the FSA to testify. One of the things that counsel can do is to make a detailed record of his/her objections for the purpose of an eventual court challenge. These objections can be made orally during the testimony or in writing or both. Among other things, defense counsel should make clear that the witness is testifying under threat of sanction and that the compulsion of the interview infringes the client’s Fifth Amendment rights.

Second, although it may not be practical (or strategically wise) to object to every interview question, defense counsel should consider objecting to any questions posed by participating U.S. regulators. Of course, counsel should be careful not to interfere with the interview or be perceived as attempting to do so.

Lastly, given that compulsory interviews are recorded by the FSA, defense counsel should always obtain a copy of the recording in order to have an unambiguous record of the proceeding. Because Kastigar and the “fruit of the poisonous tree” doctrine might preclude the use and derivative use of any compelled testimony in a U.S. criminal proceeding, it is critical for defense counsel to be able to challenge any claim by the government that its evidence was obtained through sources independent of the compelled testimony.

Conclusion

In an era of increased coordination between U.S. regulators and their international counterparts such as the FSA, U.S. courts may be called upon to decide what role, if any, compelled testimony can play in U.S. criminal proceedings. Until then, however, defense counsel should seek to preserve their clients’ rights as much as possible by following the steps described above.

William F. Johnson is a partner and head of the white collar criminal defense practice at Fried, Frank, Harris, Shriver & Jacobson. Associates Joshua D. Roth and Jorge M. Castillo assisted in the preparation of this article.

Endnotes:

1. With respect to any foreign parallel investigation, there may also be jurisdictional grounds precluding U.S. regulators from prosecuting conduct that took place outside the United States. Such jurisdictional arguments are beyond the scope of this article.

2. Section 165 of the U.K. Financial Services and Markets Act 2000 (FSMA) empowers the FSA to compel testimony or the production of documents. Section 174(2) restricts the use of such evidence in U.K. criminal proceedings or proceedings for market abuse, except for charges of perjury or of misleading the FSA.

3. FSMA §177(5).

4. Id. at §169(7).

5. FSA Handbook, Decision Procedure and Penalties Manual §7.2.14 (August 2012).

6. Baxter v. Palmigiano, 425 U.S. 308, 317-19 (1976).

7. See 18 U.S.C. §§6002-6004.

8. Kastigar v. United States, 406 U.S. 441 (1972).

9. Id. at 442.

10. Id. at 460.

The [Fifth Amendment] privilege assures that a citizen is not compelled to incriminate himself by his own testimony. It usually operates to allow a citizen to remain silent when asked a question requiring an incriminatory answer. This statute [18 U.S.C. §6002], which operates after a witness has given incriminating testimony, affords the same protection by assuring that the compelled testimony can in no way lead to the infliction of criminal penalties.

Id. at 461.

11. United States v. North, 910 F.2d 843, 853-55 (D.C. Cir. 1990) (noting that a prosecutor must show by a preponderance of the evidence that each form of evidence it seeks to introduce was derived from legitimate sources independent of the immunized testimony, usually done at a Kastigar hearing; the judge must make specific findings on the independent nature of the evidence because the prosecutor is not entitled to any favorable inferences).

12. Of course, a witness may choose to waive the protection of the Fifth Amendment and provide information voluntarily, as is often the case with witnesses who cooperate in the government’s investigation.

13. See 18 U.S.C. §§6002, 6004.

14. See United States v. Orlandez-Gamboa, 320 F.3d 328, 333-34 (2d Cir. 2003) (“[A]n agreement between Colombia and Gamboa that the statements would not be used in a Colombian prosecution cannot prohibit the United States from using them in a domestic court” (emphasis omitted)).

15. See In re Terrorist Bombings of U.S. Embassies in E. Afr., 552 F.3d 177, 203 (2d Cir. 2008); Pfeifer v. U.S. Bureau of Prisons, 615 F.2d 873, 877 (9th Cir. 1980).

16. See, e.g., United States v. Emery, 591 F.2d 1266, 1268 (9th Cir. 1978).

17. See, e.g., United States v. Abu Ali, 528 F.3d 210, 228-29 (4th Cir. 2008).

18. See, e.g., United States v. Welch, 455 F.2d 211, 213 (2d Cir. 1972).

19. See, e.g., United States v. Martindale, 790 F.2d 1129, 1131-32 (4th Cir. 1986).

20. “Notwithstanding the fact that the FSA will control the interview, the representative of the overseas regulator may assist in preparation for the interview. Further, the FSA may permit the representative to attend and ask questions of the interviewee in the course of the interview. In practice, the representative’s involvement can be considerable.” A Practitioner’s Guide to FSA Investigations and Enforcement §7.2.4 (2d rev. ed. 2007).

21. In re Terrorist Bombings of U.S. Embassies in E. Afr., 552 F.3d 177, 200 (2d Cir. 2008) (holding “inculpatory statements obtained overseas by foreign officials must have been made voluntarily”).

22. See, e.g., United States v. Karake, 443 F. Supp. 2d 8 (D.D.C. 2006) (excluding statements made to U.S. and Rwandan officials which “were extracted only after countless hours of repetitive questioning over a period of many months, during which time [the suspects] were subjected to periods of solitary confinement, positional torture, and repeated physical abuse”).

23. Adams v. Maryland, 347 U.S. 179 (1954).

24. Id. at 181.