Today’s global investigations frequently involve the cooperation of many government agencies in multiple countries. On July 18, 2017, the U.S. Court of Appeals for the Second Circuit handed down a decision creating a major obstacle for the U.S. Department of Justice in pursuing criminal cases that were jointly investigated by cross-border authorities.
In United States v. Allen, the Second Circuit overturned the convictions of Anthony Allen and Anthony Conti, two former Rabobank employees charged with manipulating the London Interbank Offered Rate (“LIBOR”), finding the case improperly relied on compelled testimony that violated the defendants’ Fifth Amendment protection from self-incrimination under the U.S. Constitution. In the first ever criminal appeal related to LIBOR manipulation to reach any Court of Appeals, a three-judge panel of the Second Circuit stated that, under the Fifth Amendment, compelled testimony could never be used to secure a conviction in an American court. The panel continued, “This is so even when the testimony was compelled by a foreign government in full accordance with its own law.”
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