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Buckley Commentary & Analysis

"Double Jeopardy in cross-border investigations" by Nadav Ariel

Buckley Commentary & Analysis

Nadav Ariel

The growth in cross-border criminal investigations has intensified the risk of overlapping prosecutions by multiple countries, potentially resulting in duplicative prison sentences and/or fines. Some countries recognize that multiple punishments for the same conduct are unjust and have taken legal steps to mitigate that consequence, but the United States has remained steadfast in prosecuting and punishing defendants even after foreign jurisdictions have done so.

Counsel representing suspects in cross-border criminal investigations, therefore, need to consider carefully which jurisdictions to engage with first to try to avoid facing multiple concurrent or successive prosecutions. In particular, defendants may have an incentive to first resolve a criminal matter in the United States in hopes of creating a preclusive effect abroad.

The United States rejects the application of Double Jeopardy for foreign judgments

The United States is often at the forefront of cross-border criminal investigations, using broad jurisdictional claims and statutes targeting foreign conduct such the Foreign Corrupt Practices Act and various anti-money laundering laws.  The First, Fifth, Ninth, and Eleventh U.S. Circuit Courts of Appeal have repeatedly held that the Double Jeopardy clause of the U.S. Constitution does not protect a defendant in the U.S. from punishment by the federal government after a foreign country has already punished the same conduct. As the Fifth Circuit concluded, “the constitution of the United States has not adopted the doctrine of international double jeopardy.” Likewise, the First Circuit explained that “[t]he black-letter rule is that prosecutions undertaken by separate sovereign governments, no matter how similar they may be in character, do not raise the specter of double jeopardy as that constitutional doctrine is commonly understood.” 

The American position is rooted in part in the risk described by the Ninth Circuit in 1978 that “prosecution by one sovereign for a relatively minor offense might bar prosecution by the [United States] for a much graver one, thus effectively depriving the latter of the right to enforce its own laws.” In that case, the defendants had been previously convicted of drug trafficking in Guatemala but were able to pay a fine there to avoid their entire prison sentence. Similarly, the Fifth Circuit in 2010 rejected a defendant’s argument, supported by the Korean Ministry of Justice, that the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions required dismissal of a bribery prosecution because it calls for countries to consult to determine “the most appropriate jurisdiction for prosecution.” The defendant there had been sentenced to only time served after being convicted in South Korea of bribing a U.S. government official.

The American position on international double jeopardy is also rooted in a closely related issue – whether double jeopardy prevents both states and the federal government within the U.S. from prosecuting someone for the same conduct. On this issue, the Supreme Court recently re-affirmed its long-held dual-sovereignty doctrine, which permits such successive prosecutions. While the Fifth Amendment provides that no person may be “twice put in jeopardy” “for the same offence,” the Court held that conviction under one sovereign’s laws is not “the same offence” as a crime under the laws of another sovereign.” The Court looked to principles of federalism – less applicable for foreign double jeopardy questions – but also cited the Founders as having “quite literally revolted against the use of acquittals abroad [in England] to bar criminal prosecution [in the American States].”

Other countries may recognize Double Jeopardy from foreign judgments

Unlike the United States, some foreign jurisdictions do apply double jeopardy principles and prohibit prosecution following a foreign resolution of a criminal investigation. A recent OECD survey found that Argentina, Costa Rica, Estonia, Latvia, Mexico, the Netherlands, Norway, Slovenia, and South Africa would apply double jeopardy principles to an earlier foreign resolution to the same extent as if the resolution was domestic.

Meanwhile, Australia, Austria, Czech Republic, Hungary, Italy, Spain, Switzerland, and the United Kingdom reported that they would apply double jeopardy principles at least to some extent in considering whether a prior foreign resolution to a criminal investigation bars a subsequent domestic prosecution. For example, in 2010, the UK’s Serious Fraud Office announced that it would decline prosecution of DePuy International Ltd because of double jeopardy principles; the company had already reached a deferred prosecution agreement in the United States for the same corrupt conduct. Brazil recently joined this list in late 2019 when its Federal Supreme Court blocked prosecution of a defendant for money laundering on double jeopardy grounds where he had previously been convicted in Switzerland for the same conduct. These trends recognize the inherent unfairness of piling on successive penalties to defendants who have already been punished.

Double Jeopardy strategy considerations

The various approaches to double jeopardy taken around the world demonstrate the importance of consulting with counsel in the various jurisdictions where a cross-border investigation is taking place. Such consultation should take place early enough in the process to allow strategic thinking about which country’s authorities to engage with first, particularly if there is interest in reaching a deferred prosecution or plea agreement through cooperation.

The willingness of certain countries to abstain from a prosecution if another jurisdiction has moved first provides a considerable incentive to first engage in serious resolution discussions with other countries, like the United States, that refuse to apply double jeopardy to foreign resolutions. A resolution with the United States may bar prosecution in countries such as Brazil or the United Kingdom, where the reverse would not be true. Of course, it may not be possible to avoid simultaneous engagement with investigations by several jurisdictions, but where there is an option, counsel should keep double jeopardy considerations in mind.

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