In November, the US Circuit Court for the Second Circuit declined to rehear en banc its July 19, 2017 decision in United States v. Allen, which recognized the testimony of a criminal defendant that is compelled by law in a foreign jurisdiction cannot be used, either directly or indirectly, as evidence against him at trial. The Second Circuit’s decision has broad consequences for individuals involved in criminal investigations with a multijurisdictional dimension in both the United States and countries where testimony can be compelled. This includes investigations inherently transnational in character, such as FCPA investigations, as well as investigations that may arise in other areas of cross-border activity, for example those involving civil agencies like the SEC and CFTC.
For more information, please see our advisory.
Patrick Linehan, a partner in Steptoe’s Washington office, authored this advisory.