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Obtaining Evidence from the United States

Learn about the various methods of obtaining evidence from the United States, including informal measures such as public sources and police assistance, as well as formal measures like bilateral treaties and conventions.

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Obtaining Evidence from the United States

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  1. Obtaining Evidence from the United States

  2. OVERVIEW • METHODS OF OBTAINING EVIDENCE • INFORMAL • police-to-police and other channels • Public sources • Voluntary cooperation • FORMAL • letters rogatory (court-to-court) • MLATs, extradition treaties, and multilateral conventions • 2000 Council of Europe Cybercrime Convention; 2000 UN Convention on Transnational Organized Crime; 2003 UN Convention Against Corruption

  3. INFORMAL MEASURES • In US – Much is Publicly Available • Court Records • Property Records – On-Line • Corporate Records • Tax Records for Charities • Political Donations • Telephone Numbers (sometimes) • Make the Web work for you

  4. INFORMAL MEASURES • INFORMAL POLICE ASSISTANCE • Interviews and Depositions of Voluntary Witnesses • Hotel Registers • Car Ownership Information • Location of Individuals • Ownership of Property • Criminal Histories • Locating Items, i.e., cars, art work

  5. INFORMAL MEASURES • OBTAIN DIRECT, INFORMAL ASSISTANCE FROM THE FOLLOWING AGENCIES: • INTERPOL • SEC and other regulatory agencies • FBI Legal Attaché • DEA Country Attaché • Homeland Security Attachés • Immigration and Customs Enforcement (ICE or HSI) • Customs and Border Protection (CBP) • Financial Intelligence Units via the Egmont Group, including FinCEN • Other agencies stationed abroad

  6. FORMAL MEASURES • Bilateral Treaties • Conventions • UN Convention Against Corruption • UN Convention Against Transnational Organized Crime • UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (Vienna Convention) • Council of Europe Convention on Cybercrime

  7. Department of JusticeCentral Authority – MLATs, Etc. • Office of International Affairs • Part of the Criminal Division, DOJ • Point of contact for all extradition requests (federal, state, local) • Six geographic teams • Attorneys assigned overseas • +1 (202) 514-0000 (ask for your “country team”)

  8. FORMAL MEASURES • FORMAL REQUESTS ARE NEEDED TO OBTAIN THE FOLLOWING: • Compelled Evidence • Bank Records • Searches and Seizures • Interviews and Depositions of Recalcitrant Witnesses • Restraint and Forfeiture of Assets • Trial Evidence – depending on your own admissibility rules

  9. Identification of financial accounts and transactions • U.S.-EU MLAT provides for this, as do bi-lateral treaties • U.S. uses FinCEN: • The FBI, DEA or ICE attaché can send your requests to FinCEN (the U.S. financial intelligence unit) for assistance. • FinCEN reserves this measure for significant cases. • Remember to use the Egmont Group to make requests • Answers are for lead purposes only • Obtain the bank records for use at trial by a formal request.

  10. Electronic Evidence Useful Guides are available for law enforcement use only.

  11. Preservation • Act promptly upon identifying relevant accounts • Direct request to U.S. ISP or hosting service. • Local Affiliate in foreign country of U.S. based ISPs or hosting service. • Through U.S. government points of contact: • 24/7 network; U.S. POC is the U.S. Department of Justice, Computer Crime and Intellectual Property Section (“CCIPS”), +1-202-514-1026 • U.S. liaison prosecutor or law enforcement attaché

  12. Evidence from Providers New, received e-mail Access logs with IP address Old, received e-mail Drafts Account creation information Sent e-mail Content and non-content are available

  13. Requirements • Non-Content (“meta-data”) • Can sometimes obtain on a voluntary basis, or based on domestic legislation (Article 18 of the Budapest Convention). • Can obtain through an MLAT request for a production order 18 USC 2703(c)(2)) • Content of emails • Content cannot be obtained voluntarily • Can obtain through an MLAT for warrant under 2703 (c)(1) and (d) • Warrants are issued on probable cause. • Probable cause – “information leading a reasonable person to believe that there is evidence in the place to be searched.

  14. Emergency Disclosures Applicable to terrorism or non-terrorism cases involving danger of death or serious physical injury(18 U.S.C. 2702) Work with FBI, including legal attaché. Can also work with 24/7 point of contact at CCIPS, or OIA.

  15. Real time interception of telecommunications or computer data Content - requires U.S. investigators to commence a U.S. investigation in which they obtain a order (often known as a “wiretap” or “T-III“). They can often share the evidence gathered. Non-Content (connection data) is available even in a purely foreign crime and can be obtained at a lower standard of proof.

  16. Probable Cause Requests must include: • Precise description of facts - basis to believe that place to be searched contains evidence (or instrumentality) of a crime. • Source of the information and the reliability of that source, if not evident. • Fairly recent events demonstrating that evidence is probably still in place to be searched. • Conclusions are not sufficient.

  17. Meet requirements of treaty or convention. • But keep it simple. Tell the story - do not use unnecessary professional or law enforcement terms, as that makes for a more difficult translation. • Show that execution is appropriate; however, you need not provide an exhaustive account of the criminal activity. • Show relevance to investigation or prosecution, and must meet probable cause in some cases.

  18. Some frequent but avoidable problems: Clarity – Focus on the crime and why the assistance proves the crime. Courts do not need to know everything you know – just what is needed for the request Confidentiality - should be prominently mentioned where needed - U.S. court records are typically public Urgency - where necessary, this should be very visible in request

  19. Consider timing Assuming you must make a formal request: • Make the request as far in advance as possible. • Be mindful of your statute of limitations. • Be mindful of trial and discovery/disclosure deadlines. • Be realistic given the amount of information you request; ask for too much and you may get nothing in time.

  20. Limitations on assistance: De minimis offenses; “Fishing expeditions”; Deferred assistance if interferes with U.S. case; Conditions on use (formal assurances may be sought and, if given, must be complied with); Other grounds for refusal (e.g. hate speech)

  21. QUESTIONS? Jason Carter (OIA-DOJ) Jason.Carter@usdoj.gov +1 202 305 9272 Michael Olmsted (OIA/Brussels/Eurojust) Michael.Olmsted@usdoj.gov OlmstedMC@state.gov +32-2-811-4257

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