An insider's perspective from former Department of Justice (DOJ) and Federal Bureau of Investigation staff about how the US government gathers evidence abroad. Without either the compulsory investigative tools available for domestic investigations or the lawful authorisation to conduct witness interviews or engage in other law enforcement activities abroad, the government has to turn to other methods.
- Formal requests under bilateral and multilateral treaties
- Informal requests to foreign authorities with whom the US government has built relationships
- Incentives for cooperating companies and individuals
- Domestic evidence of foreign conduct
- Press reports and other public sources abroad
REFERENCED IN THIS ARTICLE
- US DOJ and its Office of International Affairs
- Securities and Exchange Commission
- Foreign Corrupt Practices Act (FCPA)
- Working Group on Bribery in International Business Transactions of the Organisation for Economic Co-operation and Development
- FCPA Corporate Enforcement Policy
- Anti-Money Laundering Act of 2020
United States authorities - including primarily the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC), with a growing cast of others - investigate and punish white-collar crime in the farthest corners of the world. Just in 2020 and 2021, Foreign Corrupt Practices Act (FCPA) resolutions and prosecutions, for example, involved conduct in Brazil,1 Venezuela,2 Ecuador,3 Mexico,4 Greece,5 Saudi Arabia,6 the United Arab Emirates,7 India,8 China,9 Malaysia10 and numerous other countries. So, too, do US authorities gather evidence from abroad in cases involving money laundering,11 export controls,12 sanctions,13 and numerous other potential criminal and regulatory violations.14
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1. See Department of Justice [DOJ] Office of Public Affairs [OPA], 'J&F Investimentos S.A. Pleads Guilty and Agrees to Pay Over $256 Million to Resolve Criminal Foreign Bribery Case' (14 Oct. 2020) (guilty plea by Brazilian company over scheme to bribe Brazilian authorities), available at https://www.justice.gov/opa/pr/jf-investimentos-sa-pleads-guilty-and-agrees-pay-over-256-millionresolve-criminal-foreign.
2. See, e.g., DOJ OPA, 'Sargeant Marine Inc. Pleads Guilty and Agrees to Pay $16.6 Million to Resolve Charges Related to Foreign Bribery Schemes in Brazil, Venezuela, and Ecuador' (11 Sep. 2020), available at https://www.justice.gov/opa/pr/sargeant-marine-inc-pleads-guilty-and-agrees-pay-166-million-resolve-charges-related-foreign.
3. id.; see also Information, United States v. Raymond Kohut, Cr. No. 21-115 (E.D.N.Y. 6 Apr. 2021), available at https://www.justice.gov/criminal-fraud/file/1388211/download (detailing scheme to bribe Ecuadorian officials); DOJ OPA, 'Two Men Charged in Ecuadorian Bribery and Money Laundering Scheme' (2 Mar. 2021), available at https://www.justice.gov/opa/pr/two-men-charged-ecuadorian-bribery-and-money-laundering-scheme.
4. DOJ OPA, 'Vitol Inc. Agrees to Pay over $135 Million to Resolve Foreign Bribery Case' (3 Dec. 2020) (resolution of Foreign Corrupt Practices Act [FCPA] case over scheme to bribe officials in Brazil, Ecuador and Mexico), available at https://www.justice.gov/opa/pr/vitol-inc-agrees-pay-over-135-million-resolve-foreign-bribery-case.
5. DOJ OPA, 'Novartis AG and Subsidiaries to Pay $345 Million to Resolve Foreign Corrupt Practices Act Cases' (25 Jun. 2020) (resolution of FCPA case over allegations to bribe officials in Greece), available at https://www.justice.gov/usao-nj/pr/novartis-ag-and-subsidiaries-pay-345-million-resolve-foreigncorrupt-practices-act-cases.
6. DOJ OPA, 'Deutsche Bank Agrees to Pay over $130 Million to Resolve Foreign Corrupt Practices Act and Fraud Case' (8 Jan. 2021), available at https://www.justice.gov/opa/pr/deutsche-bank-agreespay-over-130-million-resolve-foreign-corrupt-practices-act-and-fraud.
7. id. (Deutsche Bank case involving bribery to UAE official); DOJ OPA, 'Goldman Sachs Charged in Foreign Bribery Case and Agrees to Pay Over $2.9 Billion' (22 Oct. 2020) (resolution of FCPA case over allegations of scheme to bribe officials in Malaysia and UAE), available at https://www.justice.gov/opa/pr/goldman-sachs-charged-foreign-bribery-case-and-agrees-pay-over-29-billion.
8. DOJ OPA, 'Beam Suntory Inc. Agrees to Pay Over $19 Million to Resolve Criminal Foreign Bribery Case' (27 Oct. 2020) (scheme to bribe officials in India), available at https://www.justice.gov/opa/pr/beam-suntory-inc-agrees-pay-over-19-million-resolve-criminal-foreign-bribery-case.
9. DOJ OPA, 'Airbus Agrees to Pay over $3.9 Billion Global Penalties to Resolve Foreign Bribery and ITAR Case' (31 Jan. 2020) (bribery of Chinese government officials), available at https://www.justice.gov/opa/pr/airbus-agrees-pay-over-39-billion-global-penalties-resolve-foreign-bribery-and-itar-case; DOJ OPA, 'Herbalife Nutrition Ltd. Agrees to Pay Over $22 Million to Resolve FCPA Case' (28 Aug. 2020) (same), available at https://www.justice.gov/opa/pr/herbalife-nutrition-ltd-agrees-pay-over-122-million-resolve-fcpa-case.
10. DOJ OPA, 'Goldman Sachs Charged in Foreign Bribery Case and Agrees to Pay Over $2.9 Billion' (22 Oct. 2020) (resolution of FCPA case over allegations of scheme to bribe officials in Malaysia and UAE), available at https://www.justice.gov/opa/pr/goldman-sachs-charged-foreign-bribery-case-and-agrees-pay-over-29-billion.
11. See DOJ OPA, 'Bank Julius Baer Agrees to Pay More than $79 Million for Laundering Money in FIFA Scandal' (27 May 2021) (deferred prosecution agreement with Swiss bank with offices in Uruguay and Switzerland in FIFA bribery scandal), available at https://www.justice.gov/opa/pr/bank-julius-baer-agrees-pay-more-79-million-laundering-money-fifa-scandal.
12. DOJ OPA, 'Turkish National Indicted for Wire Fraud and Illegally Exporting Defense Articles to Turkey' (21 Jul. 2021) (indictment of Turkish national over scheme to pass off Turkish-manufactured military equipment as US-manufactured in violation of Arms Exports Control Act), available at https://www.justice.gov/usao-ma/pr/turkish-national-indicted-wire-fraud-and-illegally-exporting-defense-articles-turkey.
13. Dep't of the Treasury, 'OFAC Enters Into $8,527,500 Settlement with Union de Banques Arabes et Francaises for Apparent Violations of Syria-Related Sanctions Program' (4 Jan. 2021) (settlement with French bank for facilitating financial transactions on behalf of sanctioned Syrian entities).
14. One of the most interesting recent investigations in which US authorities gathered foreign evidence is Operation Trojan Shield, an international sting operation in which US and Australian authorities sold organised crime networks 'encrypted devices' advertised as shielding communications from investigators. Instead, the devices recorded all communications and submitted them to law enforcement. The investigation resulted in 800 arrests, major drug and weapons seizures and the seizure of more than US$48 million in currency. See DOJ OPA, 'FBI's Encrypted Phone Platform Infiltrated Hundreds of Criminal Syndicates; Result is Massive Worldwide Takedown' (8 Jun. 2021), available at https://www.justice.gov/usao-sdca/pr/fbi-s-encrypted-phone-platform-infiltrated-hundreds-criminal-syndicates-result-massive.
Originally Published by GIR - Americas Investigations Review 2022
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