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Brooklyn Law Review

Abstract

We have entered a new age of international white-collar crime and are seeing the growing interdependency of the Department of Justice (DOJ) and parallel foreign agencies to conduct investigations and subsequent prosecutorial proceedings. This coordination to combat these crimes, however, has revealed a troubling question—how can enforcement agencies work effectively together if they have fundamental differences in the legal authority governing testimony-gathering and what evidence is allowed before a grand jury? The Court of Appeals for the Second Circuit, in United States v. Allen, confronted this issue directly as it overturned two indictments arising out of suspected manipulation of a global benchmark interest rate. It held that the DOJ’s derivative use of compelled testimony in American courtrooms is prohibited under the Fifth Amendment, despite that testimony being legally obtained by UK’s equivalent enforcement agency, the Financial Conduct Authority (FCA). This note does not suggest that the Second Circuit erred in its decision nor does it encourage the DOJ to forgo upholding the values set forth in the Constitution. It does, however, seek to address this apparent international problem with a comparable solution—an international solution. This note proposes a renewed look on the out-of-date approach to conducting parallel white-collar investigations. Specifically, it offers that an agreement, notably an amended Mutual Legal Assistance Treaty between the DOJ and its foreign counterparts that currently use compelled testimony, can circumvent constitutional concerns and, most importantly, foster further cooperation to fight these complex financial crimes.

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