The Privilege Against Self-Incrimination In U.S. Criminal Proceedings: What The Decision Of The United States Court of Appeals For The Second Circuit In United States Of America v. Allen And Conti Means For Canadians

On July 19, 2017 the United States Court of Appeals for the Second Circuit ruled that 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.

The US. Department of Justice (DOJ) laid criminal fraud charges against the Defendants, both former employees of the London office of a foreign based bank, after an investigation by the U.K. Financial Conduct Authority (FCA) into their role in the bank's LIBOR submissions to the British Bankers' Association.

During the FCA's investigation, both Defendants were compelled to testify under threat of imprisonment, pursuant to a grant of direct (but not derivative) use immunity. The FCA initiated an enforcement action against one of the Defendants' former co-workers, Robson, which was subsequently stayed in favor of criminal prosecution of Robson by the DOJ. However, before the enforcement action was stayed, Robson received as disclosure from the FCA transcripts of the compelled testimony of both Allen and Conti, which he reviewed.

At their trial on various fraud offences, the DOJ alleged that the Defendants had honored requests from the bank's derivatives traders to submit higher or lower LIBOR submissions dictated by the traders' (and the bank's) interest in having LIBOR fixed at a higher or lower level on particular dates. Key evidence against them at trial came from Robson, who had co-operated with the DOJ and pleaded guilty. Ultimately both Allen and Conti were convicted of all counts.

On appeal, Allen and Conti argued that the Government had violated their Fifth Amendment rights when it used tainted evidence from Robson, consisting of their own compelled testimony given to the FCA, against them at trial. Citing other decisions of the Second Circuit, they submitted that in order to be admitted at trial in a U.S. criminal trial, inculpatory statements obtained overseas by foreign officials must have been made voluntarily.

The Court of Appeals for the Second Circuit agreed, stating that a violation of the Fifth Amendment occurs when a compelled statement is offered at trial in an American courtroom against a defendant, regardless of whether the statement was compelled at the instance of a foreign government, and even when the defendant's testimony was compelled by foreign officials lawfully in a manner that does not shock the conscience or violate fundamental fairness.

While the Court...