[Senate Treaty Document 111-6]
[From the U.S. Government Publishing Office]
111th Congress
2d Session SENATE Treaty Doc.
111-6
_______________________________________________________________________
MUTUAL LEGAL ASSISTANCE TREATY WITH BERMUDA
__________
MESSAGE
from
THE PRESIDENT OF THE UNITED STATES
transmitting
TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE
GOVERNMENT OF BERMUDA RELATING TO MUTUAL LEGAL ASSISTANCE IN CRIMINAL
MATTERS, SIGNED AT HAMILTON ON JANUARY 12, 2009
June 29, 2010.--Treaty was read the first time, and together with the
accompanying papers, referred to the Committee on Foreign Relations and
ordered to be printed for the use of the Senate
LETTER OF TRANSMITTAL
----------
The White House, June 29, 2010.
To the Senate of the United States:
With a view to receiving the advice and consent of the
Senate to ratification, I transmit herewith the Treaty between
the Government of the United States of America and the
Government of Bermuda relating to Mutual Legal Assistance in
Criminal Matters, signed at Hamilton on January 12, 2009. I
also transmit, for the information of the Senate, the report of
the Department of State with respect to the Treaty.
The Treaty is one of a series of modern mutual legal
assistance treaties being negotiated by the United States to
more effectively counter criminal activities. The Treaty should
enhance our ability to investigate and prosecute a wide variety
of crimes.
The Treaty provides for a broad range of cooperation in
criminal matters. Under the Treaty, the Parties agree to assist
each other by, among other things: producing evidence (such as
testimony, documents, or items) obtained voluntarily or, where
necessary, by compulsion; arranging for persons, including
persons in custody, to travel to the other country to provide
evidence; serving documents; executing searches and seizures;
locating and identifying persons or items; and freezing and
forfeiting assets or property that may be the proceeds or
instrumentalities of crime.
I recommend that the Senate give early and favorable
consideration to the Treaty, and give its advice and consent to
ratification.
Barack Obama.
LETTER OF SUBMITTAL
----------
Department of State,
Washington, DC, March 1, 2010.
The President,
The White House.
The President: I have the honor to submit to you the Treaty
between the Government of the United States of America and the
Government of Bermuda relating to Mutual Legal Assistance in
Criminal Matters, signed at Hamilton on January 12, 2009. I
recommend that the Treaty be transmitted to the Senate for its
advice and consent to ratification.
The Treaty covers mutual legal assistance in criminal
matters. In recent years, the United States has entered into
similar bilateral treaties with a number of countries. This
Treaty contains all of the essential provisions of such
treaties sought by the United States. It will enhance our
ability to investigate and prosecute a wide variety of
offenses. The Treaty is self-executing and will not require
further implementing legislation.
An overview of the Treaty, including a detailed, article-
by-article analysis, is enclosed with this report. The
Department of Justice joins the Department of State in favoring
approval of this Treaty by the Senate at the earliest possible
date.
Respectfully submitted.
Hillary Rodham Clinton.
Enclosures: As stated.
U.S.-Bermuda Mutual Legal Assistance Treaty
OVERVIEW
The Treaty between the Government of the United States of
America and the Government of Bermuda relating to Mutual Legal
Assistance in Criminal Matters creates for the first time a
treaty-based relationship of mutual legal assistance between
the United States and Bermuda.
Bermuda is an overseas territory of the United Kingdom and
prior to signature, the United States obtained from the United
Kingdom, under cover of a diplomatic note, a copy of the
entrustment letter to Bermuda, through which the United Kingdom
granted Bermuda the authority to sign and conclude the Treaty.
The following is an article-by-article description of the
provisions of the Treaty.
Article 1 sets out the scope of assistance available under
the Treaty. Article 1(1) creates an international obligation on
each Party to provide mutual legal assistance to the other
Party in connection with the investigation, prosecution, and
prevention of criminal offenses for which the maximum penalty
is deprivation of liberty for at least one year, and in
``proceedings related to criminal matters.'' In limiting the
applicability of the Treaty to offenses for which the maximum
penalty is at least one year imprisonment, this provision makes
clear that the Treaty is to be used for requests relating to
serious offenses. There is no other limit on the types of
offenses for which assistance can be requested. Thus, as with
U.S. mutual legal assistance treaties (MLATs) generally,
assistance under the Treaty is available for a broad range of
criminal matters, from violent crimes to fraud, from tax
matters to racketeering, from computer crime to environmental
crime, and so on.
The seriousness of the offense is to be measured by the
penalty provisions in the state making the request. As noted
below, there is no general requirement in the Treaty that the
conduct constitute an offense, let alone a serious offense, in
both countries. In addition, the negotiators expressed the view
that where a request related to an investigation or prosecution
of a person for multiple offenses, at least one of which met
this threshold, the Treaty would apply as well to the other
``lesser included offenses.''
``Proceedings related to criminal matters'' is defined in
Article 21 of the Treaty to encompass any measure or step taken
in connection with the investigation or prosecution of serious
criminal offenses, including specifically forfeiture
proceedings, as well as ancillary civil or administrative
proceedings when they relate to securities matters. Thus,
assistance would be available for proceedings of the Securities
and Exchange Commission when those proceedings are incidental
to or connected with pending criminal investigations and
prosecutions. The Treaty also permits the Parties, at their
discretion, to treat as ``proceedings related to criminal
matters'' any administrative investigation that might result in
the imposition of civil or administrative sanctions.
Article 1(2) contains a non-exhaustive list of the major
types of assistance to be provided under the Treaty, including
producing evidence (such as testimony, documents, or items)
obtained voluntarily or, where necessary, by compulsion;
arranging for persons, including persons in custody, to travel
to another country to provide evidence; serving documents;
executing searches and seizures; locating and identifying
persons or items; and freezing and forfeiting assets or
property that may be the proceeds or instrumentalities of
crime. Each of these types of assistance is described in detail
in subsequent articles in the Treaty.
The Treaty also authorizes provision of any other
assistance not inconsistent with the laws of the state
receiving the request (referred to in the Treaty, as in other
such treaties, as the ``Requested Party,'' while the state
making the request is the ``Requesting Party''). As long as
there is no specific legal restriction in the Requested Party
barring the type of assistance requested, it may be provided
pursuant to the Treaty.
Consistent with most U.S. MLATs, Article 1(3) provides
that, with the exception of where it is specifically required
by the Treaty, ``dual criminality'' is not a prerequisite for
assistance under the Treaty. Thus, assistance shall be provided
without regard to whether the conduct at issue would constitute
an offense under the laws of the Requested Party. One specific
``dual criminality'' requirement is found in Article 15,
relating to search and seizure. Either Party may refuse a
request to execute a search or seizure if such authority would
not be available under its own law with respect to the conduct
in question.
Article 1(4), a standard provision in U.S. MLATs, provides
that the Treaty is intended solely for government-to-government
mutual legal assistance. The Treaty is not intended to provide
to private persons a means of evidence gathering, nor is it
intended to extend generally to civil matters. Private persons
in the United States may continue to obtain evidence from
Bermuda by letters rogatory, an avenue of international
assistance that the Treaty leaves undisturbed. Similarly, the
paragraph provides that the Treaty is not intended to create
any right in a private person to suppress or exclude evidence
provided pursuant to the Treaty, or to impede the execution of
a request.
Article 2 requires that each Party designate a ``Central
Authority'' to make and receive Treaty requests. The Central
Authority of the United States would make all requests to
Bermuda on behalf of federal and state agencies and local law
enforcement authorities in the United States. The Central
Authority of Bermuda would make all requests emanating from
officials in Bermuda. The Central Authorities are, pursuant to
Article 2(3), to communicate directly with one another.
In each state, the Central Authority is to be the Attorney
General or a person designated by the Attorney General. In the
United States, the authority to handle the duties of the
Central Authority under MLATs has been delegated to the Office
of International Affairs in the Criminal Division of the
Department of Justice.
The Central Authority of the Requesting Party exercises
discretion as to the form and content of requests, as well as
the number and priority of requests. The Central Authority of
the Requested Party is responsible for receiving and evaluating
each incoming request; transmitting it to the proper agency,
court, or other authority for execution; and effecting a timely
response.
Article 3 sets forth the circumstances under which the
Requested Party's Central Authority may deny assistance under
the Treaty. Refusal under this Article is discretionary with
the Central Authority of the Requested Party. Several of the
grounds for refusal are common to most U.S. MLATs. So, for
example, a request may be denied if it relates to a political
or a military offense, if it does not conform to the
requirements of the Treaty, or if its execution would impair
the sovereignty, security, or other essential interests of the
Requested Party, or would be contrary to important public
policy. With respect to this last ground, the government of
Bermuda indicated that it intends to interpret the provision to
give Bermuda the right to deny assistance in cases involving
capital punishment. Although the United States made clear in
negotiations its view that assistance should be possible in
such cases, the United States indicated to Bermuda that it
understood Bermuda's intention.
The other ground for refusal of assistance, which also
appears in a number of U.S. MLATs, is when a request relates to
an offender who, if proceeded against in the Requested Party
for the offense for which assistance is requested, would be
entitled to be discharged on the grounds of a previous
acquittal or conviction.
In keeping with the overall intent of the Treaty to
facilitate assistance, the Parties also included in Article 3 a
provision designed to limit the use of grounds for refusal.
Under Article 3(2), a Central Authority, before refusing
assistance under Article 3(1), is to consult with its
counterpart in the Requesting Party to consider whether
assistance can be given subject to such conditions as the
Central Authority of the Requested Party deems necessary. If
the Requesting Party accepts assistance subject to these
conditions, it is required to comply with them. In addition, if
the Central Authority of the Requested Party refuses
assistance, it is required under Article 3(3) to inform the
Central Authority of the Requesting Party of the reasons for
the refusal.
Article 4 prescribes the form and contents of requests
under the Treaty, specifying in detail the information required
in each request.
Article 5 concerns the execution of requests. Article 5(1)
includes two important concepts: the requirement that the
Requested Party take ``whatever steps it deems necessary'' as
empowered by the Treaty or national law to execute requests;
and the granting of authority to courts in the Requested Party
to issue subpoenas, search warrants, or other orders necessary
to execute requests. Taken together, these provisions
specifically authorize United States courts to use all of their
powers to issue whatever process is necessary to satisfy a
request under the Treaty, whether the authority for such
process comes from the Treaty itself or from existing statutes.
Article 5(2) builds on this by requiring the Central Authority
to ensure that requests, where necessary, are presented to
appropriate judicial or administrative authorities for action.
This provision reflects an understanding that the Parties
intend to provide each other with every available form of
assistance from judicial and executive branches of government
in the execution of mutual legal assistance requests.
Article 5(3) addresses the manner in which requests are to
be executed. It creates a hierarchy for a Requested Party to
follow in determining the appropriate procedures for executing
a request. In the first instance, requests themselves may
specify a particular procedure to be followed, and such
specified procedures are to be followed unless incompatible
with the laws and practices of the Requested Party. This can be
important to ensure that evidence collected in one state
satisfies requirements for admissibility at trial in the other.
If no particular procedure is specified in the request, the
request is to be executed in accordance with any specific
provisions of the Treaty. Finally, if neither the Treaty nor
the request specifies procedures to be followed, the Requested
Party is to execute the request in accordance with its domestic
criminal procedure laws. The intent of this provision, like
similar provisions in other U.S. MLATs, is to allow the
Requested Party to use its established procedures for obtaining
evidence where procedures are not otherwise specified, so long
as those procedures do not undermine the obligation in the
Treaty to provide assistance. See, e.g., In re Commissioner's
Subpoenas, 325 F.3d 1287 (11th Cir. 2003). In Bermuda, the
relevant procedures are in the Criminal Justice (International
Cooperation) (Bermuda) Act 1994.
Article 5(4) allows the Central Authority of the Requested
Party to postpone or condition the execution of a request if it
determines that execution of the request would interfere with
an ongoing criminal investigation, prosecution or proceeding in
that state, or would prejudice the safety of any person in its
territory. If the Requesting Party accepts assistance subject
to such conditions, it must comply with them.
Confidentiality of requests is addressed in Article 5(5).
Although requests themselves are generally not confidential,
the Requesting Party may ask that the request and its contents
be kept confidential. The Requested Party is to use its best
efforts to comply with such a request, but if assistance cannot
be granted without breaching the confidentiality requirements,
the decision whether to proceed is left to the Requesting
Party.
The remaining provisions in Article 5 address some of the
types of communications between Central Authorities essential
to a good working mutual legal assistance relationship. So, for
example, Central Authorities are to notify each other of any
problems with executing requests, respond to reasonable
requests for progress reports, and inform each other promptly
of the outcome of requests, including any reasons for denials,
delay, or postponement of execution.
Article 6 addresses the costs associated with providing
assistance. As is standard in U.S. MLATs, Article 6 provides
that the Requested Party must pay all costs relating to the
execution of a request, including representation costs, except
for the following items to be paid by the Requesting Party:
fees of expert witnesses; costs of translation, interpretation
and transcription; and allowances and expenses related to
travel of persons pursuant to Articles 10 and 11 (relating to
travel for the purpose of providing assistance and transfer of
persons in custody). The article also provides that, in the
event that fulfilling a request would require extraordinary
expenses, consultation between Central Authorities shall occur
in order to determine the terms and conditions for execution.
Finally, if the Requested Party, through no fault of its own,
incurs unexpected, extraordinary expenses the Central
Authorities are to consult as to whether the Requesting Party
should pay some or all of those expenses. The Parties discussed
that such situations would be rare.
Article 7 addresses limitations on use of information and
evidence provided under the Treaty. Information or evidence
provided under the Treaty may not be used or disclosed for any
purpose other than for the proceedings stated in the request
without the consent of the Central Authority of the Requested
Party. The Central Authority of the Requested Party may also
request that the information or evidence produced under the
Treaty be kept confidential or be used subject to certain
conditions (Article 7(2)). The default rule, however, is that
such information or evidence is not confidential, and Article
7(4) also provides that, unless otherwise indicated, once such
information or evidence has been disclosed in a public judicial
or administrative hearing related to the request, it may be
used for any purpose. Moreover, the Treaty explicitly does not
preclude the disclosure of information or evidence to the
extent that there is an obligation to disclose it under the
Constitution of the Requesting Party in a criminal prosecution.
This contingency, found in Article 7(3), was included to ensure
that the United States would be able to satisfy any obligations
to disclose information under its Constitution, such as those
set forth in Brady v. Maryland, 373 U.S. 83 (1963).
As with other provisions of the Treaty, the confidentiality
protections and use limitation provisions of Article 7 are for
the benefit of the two governments that are Parties to the
Treaty, and invocation and enforcement of these provisions is
entirely a matter for the Parties.
Article 8 is the first of a series of articles that spell
out in detail the procedures to be employed in the case of
specific types of requests for assistance outlined in Article
1(2). Article 8 addresses the obtaining of evidence, whether it
is a statement or testimony, documents, records, or particular
items. A person from whom evidence is sought under the Treaty
may appear voluntarily to provide such evidence, or, if
necessary, the Treaty authorizes the Parties to compel
production of evidence. This compulsion may be accomplished by
subpoena or any other means available under the laws of the
Requested Party.
Article 8(3) requires the Requested Party to permit persons
specified in the request to be present during execution of the
request and, through a legal representative qualified to appear
in the Requested Party's courts, to question the person giving
testimony or evidence. In order to ensure the availability of
this possibility, Article 8(2) calls on the Central Authority
of the Requested Party, upon request, to notify the Requesting
Party in advance of the date and place of the taking of
testimony or evidence. Consistent with Article 1(4), these
provisions do not create a right for private persons to be
present during the execution of the request.
Article 8(4) addresses the situation where a person from
whom the request seeks testimony or evidence asserts a right to
decline to provide such evidence (such as a privilege or
immunity). If the claim is based on the laws of the Requesting
Party, and there is no claim under the Requested Party's law,
the evidence would nonetheless be taken and the claim made
known to authorities of the Requesting State so that they may
resolve it. The Treaty does not specifically address the
resolution of privilege claims under the Requested Party's law,
but by implication those are to be resolved by that state's
authorities. This formulation allows each Party to resolve
privilege claims made under its own laws.
Article 8(5) contains the first of several provisions in
the Treaty addressing the authentication of evidence produced
pursuant to the Treaty. Similar provisions are found at
Articles 9(3) and 15(3). Evidence produced under the Treaty may
be authenticated by an attestation including, with respect to
business records, official records, or evidence that has been
seized pursuant to the Treaty, use of one of the forms appended
to the Treaty. The appended forms are an integral part of the
Treaty. The Treaty provides that evidence produced and
authenticated according to the procedure set forth in the
Treaty be admissible in evidence in the Requesting Party.
Article 9 addresses provision of documents or other records
in the possession of government agencies. The Parties are
obligated to provide to each other copies of publicly available
records in any form in the possession of an executive,
legislative, or judicial authority upon request. With respect
to documents that are not publicly available, whether to
provide such documents is left to the discretion of the
Requested Party. The Treaty authorizes the Requested Party to
provide to the Requesting Party any records to the same extent,
and under the same conditions, as they would be available to
the Requested Party's own law enforcement or judicial
authorities.
Article 10 provides a mechanism for the Requesting Party to
ask for the voluntary attendance in its territory, or in the
territory of a third state, of a person located in the
Requested Party for the purpose of assistance under the Treaty,
such as to serve as a witness or expert in proceedings or to
assist in an investigation. The Requesting Party must indicate
the extent to which the person's expenses will be paid.
Article 11 provides a similar mechanism for persons in
custody. A need sometimes arises for the testimony in one
country of a person who is incarcerated in another country. For
example, a witness incarcerated in one country--whether the
Requesting or Requested Party--may have to give testimony in
the presence of an incarcerated defendant in the other country.
Attendance of the person is still voluntary, but is also
subject to the discretion of the Parties and agreement of the
Central Authorities. In addition, the Treaty imposes certain
conditions on such transfers: the person must be held in
custody by the receiving Party, unless otherwise authorized by
the sending Party; the receiving Party must return the person
in custody to the sending Party as soon as circumstances permit
or as otherwise agreed; the return of the person shall not
require any extradition or other proceedings, such as
immigration proceedings; the period that the person is in
custody in the receiving Party shall be credited against the
person's sentence in the sending Party; and, when the receiving
state is neither of the Parties, it is the obligation of the
Requesting Party to make all necessary arrangements to meet the
Treaty's requirements.
When persons agree to travel to a Requesting Party to give
evidence, whether in custody or not, Article 10(3) authorizes
the Central Authority of the Requesting Party, in its
discretion, to give such persons a guarantee of ``safe
conduct.'' This would ensure that a person appearing in the
Requesting Party would not be subject to service of process or
any restriction on personal liberty by reason of any acts or
convictions that preceded that person's departure from the
Requested Party. This provision would not prevent action
against a person for perjury or any other crime committed while
in the Requesting Party--rather, it applies only to past
offenses. Under Article 10(4), any safe conduct so provided
would cease fifteen days after the Central Authority of the
Requested Party is notified that the person's presence is no
longer required, or if the person has left the Requesting Party
and voluntarily returns to it. Of course, as the Treaty sets
forth in Article 11(4), this article does not preclude a state
from holding a person in custody as required by Article 11(3).
While Article 11 addresses the transfer of persons in
custody from one Party to the other, Article 12 addresses the
situation in which one Party may need to bring persons in
custody through the territory of the other on the way to or
from third states in order to participate in an investigation,
prosecution, or proceeding. Article 12(2) provides that the
state through which the person transits has the authority and
obligation to keep that person in custody during the transit.
Article 13 provides for determining the whereabouts or
identity in the Requested Party of persons (such as witnesses,
potential defendants, or experts) or items when such
information is requested. The Treaty requires only that the
Requested Party use its ``best efforts'' to ascertain the
location or identity of the persons or items sought. The extent
of such efforts will vary, of course, depending on the quality
and extent of the information provided by the Requesting Party
concerning the suspected location and last known location.
Article 14 relates to service of documents. It creates an
obligation on the Parties to use their best efforts, upon
request, to serve documents relating to a request for
assistance, such as summonses, complaints, subpoenas, or
notices. The Parties made clear, however, in Article 14(2),
that service of a document in a Requested Party requesting
appearance or production of documents in a Requesting Party
does not impose any obligation under the law of the Requested
Party to comply. When the document pertains to an appearance in
the Requesting Party, it must be transmitted a reasonable time
before the scheduled appearance. The Parties chose not to set a
fixed period of time for this obligation, as circumstances may
vary.
Article 15 obligates the Requested Party to execute a
request for the search, seizure, and transfer of any item to
the Requesting Party if the request includes the information
justifying such action under the laws of the Requested Party.
For requests from Bermuda to the United States, this means that
a request would have to be supported by a showing of probable
cause for the search. The evidentiary standard required under
Bermuda law for requests by the United States is whether there
are ``reasonable grounds for suspecting,'' for example, that an
offense was committed. As noted before, either Party may refuse
a request if it relates to conduct for which the powers of
search and seizure are not available in the Requested Party.
Bermuda indicated during the negotiations that tax crimes are
one example of conduct for which search and seizure are not
available in Bermuda.
Article 16 addresses return of items provided pursuant to
Treaty requests. Such items are to be returned as soon as
practicable unless the Central Authority of the Requested Party
waives the return. The negotiators agreed that this Article
should be read in tandem with Article 7, which addresses
limitations on use of information provided under the Treaty.
Assistance in forfeiture proceedings is the subject of
Article 17. The types of actions that could be undertaken in
the United States under this Article include actions to seize
and forfeit property under Title 18, Section 981 of the United
States Code, which can be and is employed to temporarily
restrain or to seize assets or proceeds of offenses committed
abroad. The language of this Article, however, does not require
either state to take any action that would exceed its domestic
legal authority. Thus it does not mandate, for example,
institution of forfeiture proceedings against property located
in the United States in the absence of statutory authority to
institute such proceedings.
Once property is confiscated, Article 17(3) permits the
Party in control of the property to share it with the other
Party or otherwise dispose of it in accordance with its own
laws and upon such terms as it deems appropriate. United States
law permits the government to transfer a share of certain
forfeited property to other countries that participate directly
or indirectly in the seizure or forfeiture of the property
where, among other requirements, such transfer is authorized by
an international agreement. This Article provides such
authorization for asset sharing with Bermuda.
Article 18 is a relatively uncommon provision in U.S.
MLATs, although it is based on similar language in MLATs with
Canada and the United Kingdom (including the MLAT with the
United Kingdom concerning the Cayman Islands). It provides
that, before a Party seeks to enforce a compulsory measure
requiring an action to be performed in the other Party (such as
production of bank records) relating to a matter for which
assistance under the Treaty is available, the Party must first
attempt in good faith to obtain the desired assistance under
the Treaty. The Requesting Party can fulfill its obligation
under this Article by making a formal treaty request or by
engaging in consultations for the purpose of assessing the
availability of assistance under the Treaty. If the Requested
Party does not or cannot commit to provide assistance in a
timely fashion, and the delay has the potential to jeopardize
the success of the investigation or prosecution, the Requesting
Party would be relieved of any further obligation under this
provision. In addition, this provision does not require use of
the Treaty as a first resort where evidence is located in
multiple jurisdictions, including the Requested Party, but the
Requesting Party is seeking compulsion of evidence located
elsewhere (for example, in its own territory).
Article 19 states that this Treaty shall not prevent the
Parties from providing assistance to each other through the
provisions of other agreements, arrangements, or practices that
may be applicable, or through the provisions of their national
laws. Thus, for example, the Treaty would leave the provisions
of U.S. and Bermuda law on letters rogatory completely
undisturbed, and would not alter any practices or arrangements
concerning investigative assistance or prohibit the Parties
from developing other such practices or arrangements.
Article 20 provides for consultations between the Central
Authorities to promote the effective use of the Treaty. The
Parties discussed the importance of regular consultations
between Central Authorities. Such contacts generally result in
development of practical measures to more effectively implement
the Treaty.
The final clauses are contained in Article 22. The Treaty
will enter into force on the date of the latter written
notification by the Parties that they have completed their
internal legal requirements for entry into force. For the
United States, this means ratification after the advice and
consent of the Senate. The Treaty expressly applies to past
conduct--that is, once in force, it shall apply to all requests
presented between the Parties regardless of when the acts or
omissions constituting the offense occurred. Article 22 also
provides procedures for termination of the Treaty.