2nd Circ. Throws Wrench Into FCPA Enforcement

By Nicholas Berg and Lindsey Sullivan (August 11, 2017, 1:36 PM EDT) -- While the U.S. Department of Justice has increasingly turned to foreign enforcement agencies to help prosecute violations of the Foreign Corrupt Practices Act, the recent Second Circuit case, U.S. v. Allen, has thrown a constitutional wrench into the DOJ's efforts. Allen found that the Fifth Amendment prohibits use of testimony compelled by a foreign government — even if lawfully compelled pursuant to a foreign legal process — not only when the compelled testimony is directly introduced as evidence during a domestic criminal trial of the compelled witness, but also when it even shapes, alters, or affects any other evidence used against that witness-defendant in a U.S. prosecution.[1] This far-reaching ruling will immediately impact the DOJ's ability to prosecute individuals implicated in international investigations and will, in all likelihood, necessitate increased, and much more careful, cooperation with foreign enforcement agencies. In Latin America in particular, this ruling is likely to impact the DOJ's prosecution of individuals based on ongoing FCPA investigations, including the Lava Jato investigation involving Odebrecht and other companies, as well as shape the DOJ's future cooperation with the region's governments....

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