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The FCPA And Evidence Abroad

"Obtaining evidence outside the United States," the U.S. Attorneys Manual says, "involves considerations unfamiliar to many American prosecutors."

What tops the list of unfamiliar considerations? Sovereignty -- the idea that if you want something that's mine, you have to ask me for it. 

Countries aren't happy when their sovereignty is violated.

And, let's face it, representatives of the United States government aren't always known for their thoughtful and sensitive treatment of other countries.

But most FCPA violations involve money changing hands outside the United States. So evidence of the offense is often outside the jurisdiction of any U.S. court and within the sovereignty of another country.

How does the DOJ gather that evidence?

The U.S. Attorneys Manual (USAM) -- a handbook for federal prosecutors -- has a chapter about it.

"Virtually every nation," the USAM says, "vests responsibility for enforcing criminal laws in the sovereign. The other nation may regard an effort by an American investigator or prosecutor to investigate a crime or gather evidence within its borders as a violation of sovereignty."

When prosecutors need criminal evidence that's tucked away in a police station in Abuja, for instance, Uncle Sam needs to walk softly and put away the big stick. Otherwise the evidence may never leave Nigeria, and an FCPA violator might walk.

Stepping on toes overseas produces predictable results. "A violation of sovereignty," the USAM says, "can generate diplomatic protests and result in denial of access to the evidence or even the arrest of the agent or Assistant United States Attorney who acts overseas."

The manual warns that "even such seemingly innocuous acts as a telephone call, a letter, or an unauthorized visit to a witness overseas may fall within this stricture."

The best way forward?  The USAM counsels federal prosecutors to forget about going it alone or trying to force the issue. Better, the handbook says, "to invoke the aid of the foreign sovereign in obtaining the evidence."

View Title 9, Criminal Resource Manual 267, United States Attorneys Manual, here.

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