A Foreign Corrupt Practices Act case in New Jersey federal court set for trial in September has raised several novel legal issues, including uncovering a pathway for defendants to obtain exculpatory evidence held abroad through Mutual Legal Assistance Treaties.
The Department of Justice’s Office of International Affairs works with its counterparts in other countries’ bureaucracy to obtain overseas evidence through MLATs. Because MLATs are served with the imprimatur of the United States government—rather than a criminal defendant—other countries are more willing to assist in the discovery effort. This discovery device is typically only available to the government and leaves defendants with ineffective options for obtaining foreign evidence.
The defense bar has long pointed out the inequities of criminal defendants’ ability to obtain exculpatory evidence in foreign jurisdictions. This unfairness is even more pronounced in FCPA cases, which involve evidence and witnesses outside the US.
While the government possesses multiple strategies for acquiring overseas evidence, including MLATs, criminal defendants, who face potential loss of freedom, can only use letters rogatory. Letters rogatory are requests to the judiciary of a foreign country seeking—but not requiring—assistance in obtaining evidence. Letters rogatory are notoriously time consuming, inefficient, and unreliable.
Despite complaints of due process violations, the federal government has successfully blocked defendants from making use of the MLAT process to access foreign evidence, and federal judges have been unwilling to force the government’s hand.
US v. Coburn
In 2019, DOJ charged the former president Gordon Coburn and former chief legal officer Steven Schwartz of Cognizant Technology Solutions with allegedly approving a $2 million payment to an unidentified Indian official in return for a planning permit to speed up construction of Cognizant’s office campus in India. The government declined to prosecute Cognizant after it agreed to cooperate in the investigation.
According to the indictment, defendants authorized Larsen & Toubro Ltd., also known as L&T, a large Indian construction company that Cognizant contracted with to build the office building, to pay the bribe. Thereafter, L&T allegedly hired a consultant to pay the bribe.
It’s a tangled web, to be sure. To convict the defendants, the government must prove each link in the attenuated causal chain. However, if defendants can break any link, then they have a fighting chance to win at trial.
A key fact relating to that causal chain is that L&T has denied any involvement in illegal bribes. L&T’s Audit Committee concluded there wasn’t sufficient evidence to support the allegations of L&T’s involvement in making alleged improper payments. Moreover, both the US and India investigated L&T but never charged the company with a crime.
Overseas Evidence
As the case progressed, it has become clear that defendants needed testimony from witnesses in India to rebut the government’s case. The defendants have tried to obtain this evidence through every available method, to no avail.
First, in 2020, defendants served Fed. R. Crim. P. 17(c) subpoenas on L&T in the US. L&T successfully quashed these subpoenas due to lack of personal jurisdiction.
Second, in 2021, defendants issued a letter rogatory to India for L&T-related documents. Those requests stalled, and defendants never received any documents.
Finally, in August 2022, defendants filed a motion for a letter rogatory to depose seven Indian witnesses under Fed. R. Crim. P. 15. The government opposed the motion.
The federal court in New Jersey granted the motion, but this request also stalled for over a year, and ultimately went nowhere.
Obtaining an MLAT
In US v. Coburn, DOJ declined at several stages to issue an MLAT to expedite the Rule 15 depositions. In each instance, the government claimed that DOJ’s Office of International Affairs provided legal advice that DOJ “could not” issue an MLAT.
Judge Kevin McNulty acknowledged that these depositions were critical for defendants but deferred to the OIA guidance.
While he told DOJ that he wanted “to know periodically what’s going on with the letters rogatory,” the government’s status updates were few and far between.
Judge Michael Farbiarz took the case upon McNulty’s retirement and immediately pressed DOJ to follow up on the letters rogatory. India ultimately declined to execute the letters rogatory, asking that DOJ resend the request through the MLAT process instead.
At a hearing about India’s request, defense counsel cited cases where DOJ had voluntarily issued an MLAT on behalf of defendants, demonstrating it has been done. DOJ nevertheless reiterated OIA’s guidance that it could not, and therefore would not, issue an MLAT request.
Farbiarz expressed skepticism and ordered DOJ to revisit with OIA regarding whether the language of the MLAT truly prohibits the Government from issuing the MLAT request, noting that it “doesn’t strike me as what those treaties are taken to mean.”
The judge’s pushback was highly unusual given that federal judges typically don’t weigh in on how MLATs are used, question OIA’s interpretation of treaties, or order the government to obtain evidence for defendants.
Farbiarz ordered DOJ to report back in a week, after the agency reflected on its position. The judge’s pressure worked: Nearly 2.5 years after defendants’ initial request to depose several Indian witnesses, the Justice Department issued the MLAT.
What Does It All Mean?
MLATs are powerful tools to obtain overseas evidence that lie almost exclusively in the hands of DOJ. While this case may not change DOJ’s hesitance to issue MLATs for defendants, it can be used as an example to demonstrate that it is possible to do so, and that taking the opposite position risks having a federal judge force the issue.
In US v. Coburn, the court’s order sets a persuasive precedent and may open up a powerful discovery tool for criminal defendants who can show that overseas evidence is potentially exculpatory and unavailable without the government’s assistance.
The case is United States v. Coburn, D.N.J., 2:19-cr-00120, trial begins 9/9/24.
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
Author Information
Sara Kropf is trial lawyer and co-founder of Kropf Moseley, who defends people under criminal investigation and companies in complex civil litigation.
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