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United States v. Conti - 864 F.3d 63 (2d Cir. 2017)


The U.S. Supreme Court has recognized two constitutional bases for the requirement that a confession be voluntary to be admitted into evidence: the Fifth Amendment right against self-incrimination and the Due Process Clause of the Fourteenth Amendment. Of these two potential "constitutional bases," Second Circuit precedents applying such a requirement to confessions procured by foreign law enforcement have been grounded in the Self-Incrimination Clause and Bram v. United States.


As employees in the London office of  a bank in the 2000s, defendants-appellants Anthony Allen and Anthony Conti ("Defendants") played roles in that bank's London Interbank Offered Rate ("LIBOR") submission process during the heyday of the rate's manipulation. Allen and Conti were, for unrelated reasons, no longer employed at Rabobank by 2008 and 2009, respectively. By 2013, they were among the persons being investigated by enforcement agencies in the United Kingdom ("U.K.") and the United States for their roles in setting LIBOR. The U.K. enforcement agency, the Financial Conduct Authority ("FCA"), interviewed Allen and Conti (each a U.K. citizen and resident) that year, along with several of their coworkers. At these interviews, Allen and Conti were compelled to testify and given "direct use"—but not "derivative use"—immunity. In accordance with U.K. law, refusal to testify could result in imprisonment. The FCA subsequently decided to initiate an enforcement action against one of Defendants' coworkers, Paul Robson, and, following its normal procedures, the FCA disclosed to Robson the relevant evidence against him, including the compelled testimony of Allen and Conti. Robson closely reviewed that testimony, annotating it and taking several pages of handwritten notes. Thereafter, FCA dropped its case against Robson and so, the Fraud Section of the United States Department of Justice (the "DOJ") promptly took it up. Robson soon pleaded guilty and became an important cooperator, substantially assisting the DOJ with developing its case. Ultimately, Robson was the sole source of certain material information supplied to the grand jury that indicted Allen and Conti and, after being called as a trial witness by the Government, Robson provided significant testimony to the petit jury that convicted Defendants. On appeal, the defendants challenged their conviction, asserting that the process of their conviction violated the Fifth Amendment's prohibition on the use of compelled testimony.


Can a testimony involuntarily given by an individual under the legal compulsion of a foreign power be used against that individual in a criminal case filed in an American court?




The Court held that the defendants’ compelled testimony given under the legal compulsion of a foreign power cannot be used against them in a criminal case filed in an American court. According to the Court, the Fifth Amendment's prohibition on the use of compelled testimony in American criminal proceedings applies even when a foreign sovereign has compelled the testimony. In the case at bar, the Court posited that the impermissible use of the defendants’ compelled testimony before the petit and grand juries was not harmless beyond a reasonable doubt, because it provided the only first-hand eyewitness account that refuted defendants' central argument for acquittal. Moreover, the Court concluded in using a cooperating witness who had substantial exposure to the defendants' compelled testimony, the government failed to prove under Kastigar v. United States that the witness's review of the compelled testimony did not shape, alter, or affect the evidence used by the government.

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