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Criminal Investigations

Criminal Investigations. Mary Butler, RLA, U.S. Embassy-Kyiv and Paul Pelletier, Defense Advocate. Miami, Florida USA. Washington, District of Columbia USA. “Better that a guilty person goes free than that an innocent man is convicted.” . American Criminal Justice Films. Abramoff case.

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Criminal Investigations

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  1. Criminal Investigations Mary Butler, RLA, U.S. Embassy-Kyiv and Paul Pelletier, Defense Advocate

  2. Miami, FloridaUSA

  3. Washington, District of ColumbiaUSA

  4. “Better that a guilty person goes free than that an innocent man is convicted.”

  5. American Criminal JusticeFilms

  6. Abramoff case

  7. Gaining cooperation of insiders through plea and cooperation agreements is the key to investigating and prosecuting complex crimes

  8. NOT THE ROLE OF COURT To find evidence to support conviction To find the facts and arrive at the verdict (“speak the truth”) independently from the parties subject to procedural safeguards and protections

  9. Safeguards include • Ban against use of confessions • Prohibition against use of evidence obtained illegally • Prohibition of use of evidence derived from illegally obtained evidence: • Without a court warrant • Obtained after time deadlines for investigation • Right to defense counsel even if can’t afford to hire counsel

  10. Historically, Key Differences Between U.S. and Ukrainian Systems • Role of the Prosecutor • Works closely with Agents investigating case • Drafts criminal charges • Represents United States in Court • Works with witnesses and victims • No General Supervision

  11. NEW CPC Requires one prosecutor per case Prosecutors to guide investigations Prosecutors are responsible to ensure that inculpatory and exclupatory evidence is produced or the evidence should be excluded

  12. Specialization USA: vertical specialization Ukraine: horizontal specialization procedural stage division substantive specialization with specific experience and detailed knowing of the case trial corruption organized crime financial fraud narcotics investigative stage operative stage

  13. Requirement of Specialization of Prosecutors • Specialization • Reactive Crimes Unit • Drug Unit • Complex Fraud Unit • Health Care Fraud Unit • Organized Crime and Gang Unit • National Security Unit • Public Corruption Unit • Asset Forfeiture Unit

  14. GOAL of INVESTIGATIONS Collect evidence which is admissible at trial to prove guilt or to impeach witnesses

  15. Conclusion of investigation Focus on whether you have gathered sufficient evidence to prove the guilt beyond a reasonable doubt Charge the person, if the evidence is sufficient or close investigation permanently or unless other evidence is uncovered

  16. What is Admissible Evidence? • Direct evidence • Circumstantial evidence • Strict limits on out of court statements • Strict limits on illegally obtained evidence • Very similar in Ukraine

  17. Not Evidence in USA or Ukraine Notes Dossier (delo) Evidence can be presented only in court

  18. 2 kinds of cases H i s t o r i c a l (murder) Crime is completed R e a l t i m e (corruption) Crime is conducted

  19. Keys to successful criminal investigations 1) Police and prosecutors working closely together from the beginning of the investigation        a) concurrence is required by internal agency rules       b)  coordination required because court approval required for some of the most intrusive techniques and prosecutors represent the police in court (search warrants; wire taps; tracking devices, etc.)       c) leads to commitment to the case by the prosecutor 2) Necessary to closely follow the procedural rules and law to avoid suppression of evidence at trial 3) Usually involves use of cooperating defendants 4) Leads to collection of credible evidence that shows motive and reasonableness of the government's action and arguments for guilt

  20. Most powerful tool to investigate and prosecute complex crimes like corruption Plea agreements to gain cooperation of defendants who have knowledge of an insider in past or on-going criminal activity Suspect/ defendants enter into these agreements for sentence reductions, swifter resolution or cases or to gain agreement not to prosecute family members or others

  21. It’s the Plea Agreements That make almost all of the difference between soling a crime or not.

  22. The “take down” day is also a key part of successful investigations Coordinated effort to conduct interviews and searches simultaneously so that evidence is preserved and people don’t have opportunities to coordinate their stories

  23. Takedown day Arrest warrant

  24. Takedown day Search warrant (home, office, computer)

  25. Takedown day Seizure warrant (freeze assets, banking accounts, real estate)

  26. Plea Agreements with cooperation make the difference between whether cases are made or not in complex crimes.

  27. In the US: 1) Most cases are resolved through guilty pleas; 2) Of the cases that go to trial, most are tried to jurors and about 89 percent result in guilty verdicts in the federal system; 3) Historical disparity in prison terms for white collar versus violent crime or narcotics offenses; 4) Lot's of crowded prisons of varying degrees of security.

  28. Cooperators of justice:Must be convinced of 3 ideas You are in serious trouble; Only the prosecutor and law enforcement can help you; Your cooperation will not get you killed.

  29. Cooperation agreement Criminal – agrees to plead guilty; Criminal – always will tell the truth; Criminal – will commit no more crimes; Criminal - will meet with prosecutor at his demand; Criminal - will testify in court.

  30. Consequences of violating Agreement If the agreement is violated, it is void (even if time has passed); Everything said can be used against criminal; Can also be charged with obstruction.

  31. US law enforcement officers may present an opportunity to commit a crime as part of an investigation: 1) must have evidence that defendant pre- disposed to commit the crime;    2) usually use a cooperating defendant or information from a cooperating defendant         - to establish predisposition; and         - to design a scenario that the defendant understands and is comfortable with

  32. US prosecutors and investigators may also follow or join in a crime in progress • by introducing an under cover agent or cooperating defendant or by means including: • wire tapping phones without any participant aware • recording individual conversations by a participant • installing bugs in public places • Seizing trash • Placing gps devices on cars, boats, planes

  33. Undercover Operatives: 2 types Police officers under cover Criminals cooperating under plea agreements

  34. All cases made through the use of plea and cooperation agreements – A tool you now have in the CPC

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