Michael Abbell is a criminal defense lawyer in Washington, D.C. specializing in international criminal defense matters. He is the former Director, Office of International Affairs, Criminal Division, U.S. Department of Justice, and the principal author of volumes three through six of M. Abbell & B.A. Ristau, International Judicial Assistance: Criminal (International Law Institute, 1990). He served as Chairman of NACDL's International Criminal Law Committee from 1989 to 1991.
Today, the United States has more than 20 mutual legal assistance treaties (MLATs) worldwide. This article focuses on the importance of MLATs in obtaining evidence from abroad in criminal cases, and how the Department of Justice (DOJ) has endeavored to stymie criminal defendants in their efforts to obtain evidence from abroad for use in their own defense. Defense counsel must diligently pursue such evidence or risk a subsequent charge of ineffective assistance of counsel.
Historical Background
In 1973, after more than four years of negotiations, the United States and Switzerland signed this country's first mutual (legal) assistance treaty in criminal matters.1 Although the Swiss MLAT imposed reciprocal obligations on both countries, it was designed primarily to facilitate the ability of the United States to obtain evidence from Switzerland (including Swiss bank records) in an efficient and effective manner, for use in United States criminal investigations and prosecutions and in a form that would permit it to be admitted in evidence in United States criminal trials.2 Both parties also intended the MLAT to take the place of the archaic mechanism of letters rogatory in relation to the obtaining of evidence from the other party in criminal matters -- a mechanism that the DOJ in particular had found to be woefully inadequate.3Since the Swiss Treaty, the United States has signed MLATs with 26 other countries, and is actively negotiating additional treaties. More than 20 of these treaties are now in force and several others have been approved for ratification by the Senate. Within the next decade, it is expected that the great majority of U.S. requests for judicial assistance in connection with criminal investigations and prosecutions dependent on foreign evidence will be made under this country's MLATs.4 Even as more MLATs enter into force, it also can be expected that a substantial number of judicial assistance requests in drug-related investigations and prosecutions will continue to be made and received by the United States pursuant to the detailed mutual assistance provisions of Article 7 of the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances ("U.N. Drug Convention").
The Swiss MLAT, several negotiated in the late 1970s and early 1980s,5 and the UN Drug Convention are silent with respect to the ability of criminal defendants to use the treaties to obtain evidence on their behalf. However, after the negotiation of those treaties, the U.S. Department of Justice has insisted on including language in all subsequent United States MLATs that is designed to preclude criminal defendants from using the treaties to obtain evidence from abroad for use in their own defense.6
Preventing criminal defendants from utilizing MLATs to obtain evidence from abroad with which to defend themselves places them at an unfair disadvantage to the government, and raises constitutional concerns. Reflecting these concerns, the National Association of Criminal Defense Lawyers (NACDL), the Criminal Justice Section of the American Bar Association (ABA), and the American Civil Liberties Union (ACLU), in Spring 1988, expressed their views regarding such provisions to the Senate Foreign Relations Committee, which was then considering whether to recommend that the Senate give its advice and consent to the ratification of six MLATs pending before it. At its 1989 annual meeting, the ABA House of Delegates, despite the vocal opposition of the Departments of Justice and State, unanimously passed a resolution recommending that all future MLATs expressly permit a criminal defendant to use such treaties to obtain evidence from abroad where the trial court determined that the obtaining of such evidence was necessary to the defense of the case.7
As a result of these efforts, the Senate Foreign Relations Committee delayed reporting the treaties to the full Senate until late 1989. When it finally did so, the committee's report stated:
[C]oncern was raised that defendants in criminal cases are explicitly excluded from use of the Mutual Legal Assistance Treaties. The committee notes that nothing in th[ese] treat[ies] is intended to negate the authority of the Court to ask the prosecution to make requests for information under the treat[ies].8
Mischaracterization of Defense Bar Position
Not satisfied with the status quo, DOJ, in connection with the Senate's recent consideration of the United States ratification of five MLATs, has continued its assault on the right of defendants in criminal cases to use MLATs to obtain evidence from abroad for use in their own defense.9 In opposing the use of MLATs by criminal defendants, the government has purposely and consistently mischaracterized the position of the proponents of the right of criminal defendants to use MLATs to obtain evidence on their behalf. It has done so by claiming that the proponents seek to have "private persons such as defendants in criminal cases" afforded unfettered use of MLATs to obtain evidence from abroad in criminal investigations and cases.10In fact, as made clear in Criminal Justice Section Report No. 109 (1989), in support of the resolution subsequently unanimously approved by the ABA's House of Delegates, the proponents have merely taken the position that "every future MLAT should expressly permit criminal defendants to use the treaty to obtain evidence from the Requested country to use in their defense if they can make a showing of necessity to the trial court." (Emphasis added). Under Rule 15(a) of the Federal Rules of Criminal Procedure such a "showing of necessity" requires the defendant to demonstrate that "due to exceptional circumstances of the case it is in the interest of justice" that the testimony of a witness be taken by deposition abroad and/or that documents or other items of physical evidence be obtained from abroad.11 (Emphasis added). Moreover, the proponents of the right of criminal defendants to use MLATs to obtain evidence have never sought to have the MLAT mechanism for obtaining evidence made available to persons who are merely the targets of criminal investigations -- i.e., at the investigative stage. Rather, they have sought to have that mechanism made available only to criminal defendants -- by definition persons who have been charged with a criminal offense in a United States court.
Such court supervised use of MLATs pursuant to the clearly articulated requirements of Rule 15(a) is a far cry from the unfettered, unsupervised use of MLATs that DOJ has consistently maintained is the objective of the criminal defense bar and other proponents of the right of criminal defendants to obtain evidence pursuant to MLATs. DOJ, nevertheless, has never been willing to meet with the criminal defense bar in an effort to reach an understanding on this subject. It has rather chosen to maintain an attitude of confrontation rather than accommodation.
Government's Disingenuous Rationale
The DOJ has given a number of reasons for opposing the use of MLATs by defendants in U.S. criminal cases. In doing so, it has repeatedly demonstrated the guilefulness of its arguments.First, it claims that other countries would be deterred from entering "into MLATs with the United States if it meant making information available to criminals."12 In making this assertion, DOJ has failed to cite one instance in which a foreign country would have refused to enter into an MLAT with the United States because of the ability of criminal defendants to utilize the treaty -- much less an instance where the prospective treaty partner was made aware that, before such a defendant would be able to seek evidence under the treaty, a U.S. court would have to determine that due to the exceptional circumstances of the case it was in the interest of justice that the defendant's request be granted. Indeed, in one of the recent Senate MLAT Reports the government had the temerity to maintain this position despite acknowledging that the United States treaty partner was obligated under its own law "to seek evidence to assist defense counsel as well as prosecutors," and intended to use the MLAT for that purpose.13 In fact, such an obligation exists even at the investigative stage in most, if not all, countries that follow the civil law (Napoleonic Code) system.
Second, DOJ asserts that it is not necessary for criminal defendants to be able to use an MLAT to obtain evidence because they have "far greater access to evidence abroad than does the government."14 This assertion is correct only insofar as a defendant is seeking foreign documents or other physical evidence under his or her control, or the testimony of a foreign witness who is willing to be deposed voluntarily in a United States embassy or consulate.
However, in cases in which a defendant seeks the deposition of a foreign witness who is unwilling to be deposed unless compelled to do so, or the production of documents or other physical evidence located in a foreign country which evidence can only be obtained pursuant to an order from a court in that country, criminal defendants need judicial assistance to obtain such evidence for use at their trials in the United States.
Third, DOJ maintains that criminal defendants can readily obtain such judicial assistance pursuant to letters rogatory from the trial court to the appropriate court in the requested country.15 However, one of the principal reasons that the United States has negotiated and signed MLATs with more than 27 countries, and that it is actively negotiating such treaties with other countries, is that it has long recognized that letters rogatory are an inefficient and ineffective method of obtaining evidence from foreign countries.16 Indeed, its own United States Attorneys Manual informs federal prosecutors that, because of the inefficiency of the letter rogatory process, they should ordinarily "count on as much as a year or more" to obtain evidence from abroad pursuant to letters rogatory.17 Such delays, which can effectively result in the denial of the right of a defendant to a speedy trial under the Sixth Amendment18 and which are particularly onerous for defendants held in pretrial detention, could be greatly alleviated by permitting MLATs to be used by criminal defendants pursuant to Rule 15 court orders.
Fourth, DOJ claims that "[s]ince the government does not obtain compulsory process under MLATs there is nothing the defense is being denied."19 However, in recent testimony before the Senate Foreign Relations Committee in support of the ratification of the five MLATs then pending before it, the DOJ spokesperson testified:
[A]n MLAT obligates each country to provide evidence or other assistance. Letters rogatory, on the other hand, are executed solely as a matter of comity, and often completely at the discretion of the requested country's court.20 (Emphasis in original).
Among the obligations a requested country undertakes under an MLAT is the obligation (except in a very few ordinarily inapplicable circumstances) to provide compulsory assistance to the requesting country. Such compulsory assistance extends to the compelled production of documents and other physical evidence in the requested country, and the compelled taking of testimony in that country. Moreover, as the Department of Justice spokesman further acknowledged, whereas letter rogatory requests "do not routinely pierce bank secrecy," assistance under MLATs generally overcomes bank secrecy and business confidentiality laws in the requested country.21
In other words, MLATs provide the government with de facto compulsory process. Therefore, if DOJ were to refuse to use an MLAT to execute a Rule 15 court order authorizing a criminal defendant to obtain evidence from abroad, that denial would appear to violate the defendant's rights under the Compulsory Process clause of the Sixth Amendment. That clause obligates the government to provide criminal defendants with the same means to obtain evidence from abroad as it affords itself through the MLATs -- especially where that means is markedly superior to the alternative methods available to defendants.22
The position of the Departments of Justice and State with respect to the use of MLATs by defendants in United States criminal cases is also in direct conflict with the requirements of the International Covenant on Civil and Political Rights to which the United States became a party in 1992. Article 14(3)(e) of the International Covenant provides:
3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees in full equality:
e. To examine or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him. (Emphasis added).23
Finally, DOJ contends that "no court has adopted the legal reasoning at the core of" the arguments made by the individuals and organizations supporting criminal defendants' access to MLATs to obtain evidence on their behalf. It is disingenuous for the government to rely on this contention given that in every known instance in which a trial court indicated it intended to issue a Rule 15 order directing the government to make an MLAT request on behalf of a defendant in a criminal case, the Department of Justice has "volunteered" to make the request.24
Conclusion
In view of DOJ's continued opposition to the use of MLATs by United States criminal defendants, defense counsel confronted with the need to obtain evidence from foreign countries on behalf of their clients must press trial courts to order the government to use the MLATs to execute requests for such assistance where there is an MLAT in force with the country in which the evidence and/or witness is located, or in drug cases, to use the procedures established by Article 7 of the U.N. Drug Convention to execute such requests.Such efforts hopefully will result in DOJ either reluctantly acceding to the use of MLATs by criminal defendants or finding itself with unfavorable judicial precedents for failing to do so. Indeed, where critical evidence from abroad is not obtained in time for use at trial, the failure of a criminal defense lawyer to challenge the Department of Justice position may be held to constitute ineffective assistance of counsel.
NOTES
1. 27 U.S.T. 2019, T.I.A.S. No. 8302 (entered into force January 23, 1977); S. Exec. Rep. F, Treaty with the Swiss Confederation on Mutual Assistance in Criminal Matters, 94th Cong., 2d Sess. 35 (1976).2. See 3 M. Abbell & B.A. Ristau, International Judicial Assistance: Criminal (Obtaining Evidence), 12-4-1 (1995) (hereafter "3 Abbell & Ristau").
3. Ibid.
4. The United Nations Drug Convention entered into force November 11, 1990. As of October 1, 1996, it was in force for the United States and 136 other countries. See 3 Abbell & Ristau, 12-3-9.
5. See, e.g., Treaty on Mutual Assistance in Criminal Matters, 1983, United States-Netherlands, T.I.A.S. No. 10734.
6. See 3 Abbell & Ristau, 12-4-7(2).
7. The criminal defense bar has consistently supported the negotiation and ratification of MLATs. It has continuously maintained, however, that the rights of defendants in criminal cases to make use of the treaties pursuant to an order from the trial court must be protected either by the treaties themselves or by a specific, formal understanding as to the manner in which the treaties are to be implemented.
8. S. Exec. Rep. No. 8, Mutual Legal Assistance Treaty Concerning the Cayman Islands, 101st Cong., 1st Sess. 5 (1989).
9. S. Exec. Rep. No. 24, Treaty with Austria on Mutual Legal Assistance in Criminal Matters, 104th Cong., 2d Sess. 9-11 (1996) (Austrian Report); S. Exec. Rep. No. 20, Treaty with Hungary on Mutual Legal Assistance in Criminal Matters, 104th Cong., 2d Sess. 9-10 (1996); S. Exec. Rep. No. 22, Treaty with Korea on Mutual Legal Assistance in Criminal Matters, 104th Cong., 2d Sess. 9-10 (1996); S. Exec. Rep. No. 26, Treaty with the Philippines on Mutual Legal Assistance in Criminal Matters, 104th Cong., 2d Sess. 9-10 (1996); S. Exec. Rep. No. 23, Treaty with the United Kingdom on Mutual Legal Assistance in Criminal Matters, 104th Cong., 2d Sess. 10-11 (1996),
10. See, e.g., Austrian Report, at 10.
11. The party seeking a Rule 15 order always bears the burden of persuasion as to the need for the order. See, e.g., United States v. Drogoul, 1 F.3d 1546, 1552 (11th Cir. 1993).
12. See, e.g., Austrian Report, at 10. In this regard, it is singularly disconcerting to note the manner in which each of the Senate reports equate unconvicted criminal defendants to criminals -- particularly where the very evidence the defendant seeks to obtain is intended to help prove his innocence.
13. Id. at 14.
14. Id. at 11.
15. Ibid.
16. See 3 Abbell & Ristau, 12-3-3(2).
17. 9-13.521(B).
18. See also 18 U.S.C. 3161(h)(9), which excludes any period of delay up to one year, found by a court to be necessary to the obtaining of evidence from abroad for use in a federal criminal trial, from the strictures of the Speedy Trial Act; 3 Abbell & Ristau, 12-2-2(8).
19. Austrian Report, at 10-11.
20. Statement of Mark M. Richard, Deputy Assistant Attorney General, United States Department of Justice, before the Senate Foreign Relations Committee Concerning Extradition and Mutual Legal Assistance Treaties, 6 (July 17, 1996).
21. Ibid.
22. See United States v. White, 562 F.2d 587, 589 (8th Cir. 1977); United States v. Greco, 298 F.2d 247, 251 (2d Cir.), cert. denied, 369 U.S. 820 (1962); 3 Abbell & Ristau, 12-2-1(2). Cf. United States v. Filippi, 918 F.2d 244 (1st Cir. 1990). In Filippi, a United States embassy refused to issue a visa to a critical defense witness who was willing to travel to the United States to testify on behalf of the defendant. The trial judge ordered the United States Attorney to request a Special Public Interest Parole from the Immigration and Naturalization Service (INS) to permit the witness to come to the United States to testify -- a method the government itself uses to facilitate the presence of a prosecution witness who does not qualify for a visa. The Court of Appeals, severely criticized the United States Attorneys office for its negligence in failing to seek the Special Public Interest Parole, stating that in the circumstances of this case, the "onus" on the government was to make possible the attendance of the witness -- by requesting a Special Interest Parole from INS. . . . Such a failure to act, where action was required, by the United States Attorney constitutes a violation of the Sixth Amendment right to compulsory process and, derivatively, the right to due process protected by the Fifth Amendment. Filippi, 918 F.2d at 247. The reasoning of the Court of Appeals in Filippi would appear to be equally applicable to the government's attempt to deny defendants in United States criminal cases the use of MLATs to obtain evidence on their behalf.
23. No court, however, has dealt with the interrelationship of this provision of the International Covenant and the provisions of United States MLATs seeking to limit the use of the MLATs by criminal defendants.
24. See 3 Abbell & Ristau, 12-2-1(2) and 12-4-7(2); United States v. Des Marteau, 162 F.R.D. 364, 370-72 (M.D. Fla. 1995).