Criminal Investigations

Mary Butler, RLA, U.S. Embassy-Kyiv and Paul Pelletier, Defense Advocate

Miami, FloridaUSA

Washington, District of ColumbiaUSA

“Better that a guilty person goes free than that an innocent man is convicted.”

American Criminal JusticeFilms

Abramoff case

Gaining cooperation of insiders through plea and cooperation agreements is the key to investigating and prosecuting complex crimes

NOT THE ROLE OF COURT To find evidence to support

conviction

To find the facts and arrive at the verdict (“speak the truth”) independently from the parties subject to procedural safeguards and protections

Safeguards include Ban against use of confessions Prohibition against use of evidence

obtained illegally Prohibition of use of evidence derived

from illegally obtained evidence:• Without a court warrant• Obtained after time deadlines for

investigation Right to defense counsel even if

can’t afford to hire counsel

Historically, Key Differences Between U.S. and Ukrainian Systems

Role of the Prosecutor• Works closely with Agents investigating

case• Drafts criminal charges• Represents United States in Court• Works with witnesses and victims

No General Supervision

NEW CPC Requires one prosecutor per case Prosecutors to guide investigations Prosecutors are responsible to ensure

that inculpatory and exclupatory evidence is produced or the evidence should be excluded

SpecializationUSA: vertical specialization

substantive specialization with specific experience and detailed knowing of

the case

Ukraine: horizontal specialization

corru

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nor

gani

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crim

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ics

finan

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raud

procedural stage division

operative stage

investigative stage

trial

Requirement of Specialization of Prosecutors

Specialization• Reactive Crimes Unit• Drug Unit• Complex Fraud Unit• Health Care Fraud Unit• Organized Crime and Gang Unit• National Security Unit• Public Corruption Unit• Asset Forfeiture Unit

GOAL of INVESTIGATIONS Collect evidence which is admissible

at trial to prove guilt or to impeach witnesses

Conclusion of investigation Focus on whether you have gathered

sufficient evidence to prove the guilt beyond a reasonable doubt

Charge the person, if the evidence is sufficient or close investigation permanently or unless other evidence is uncovered

What is Admissible Evidence?

Direct evidence Circumstantial

evidence Strict limits on out

of court statements Strict limits on

illegally obtained evidence

Very similar in Ukraine

Not Evidence in USA or Ukraine

NotesEvidence can be presented only in court

Dossier (delo)

2 kinds of cases

H i s t o r i c a l (murder)

Crime is completed

R e a l t i m e(corruption)

Crime is conducted

Keys to successful criminal investigations

1) Police and prosecutors working closely together from the beginning of the investigation

       a) concurrence is required by internal agency rules      b)  coordination required because court approval required

for some of the most intrusive techniques and prosecutors represent the police in court

(search warrants; wire taps; tracking devices, etc.)

      c) leads to commitment to the case by the prosecutor2) Necessary to closely follow the procedural rules and law

to avoid suppression of evidence at trial3) Usually involves use of cooperating defendants4) Leads to collection of credible evidence that shows

motive and reasonableness of the government's action and arguments for guilt

Most powerful tool to investigate and prosecute complex crimes like corruption

Plea agreements to gain cooperation of defendants who have knowledge of an insider in past or on-going criminal activity

Suspect/ defendants enter into these agreements for sentence reductions, swifter resolution or cases or to gain agreement not to prosecute family members or others

It’s the Plea Agreements That make almost all of the

difference between soling a crime or not.

The “take down” day is also a key part of successful investigations

Coordinated effort to conduct interviews and searches simultaneously so that evidence is preserved and people don’t have opportunities to coordinate their stories

Takedown day

Arrest warrant

Takedown day

Search warrant (home, office,

computer)

Takedown day

Seizure warrant (freeze assets,

banking accounts, real

estate)

Plea Agreements with cooperation make the difference between whether cases are made or not in complex crimes.

In the US:1) Most cases are resolved through guilty

pleas;2) Of the cases that go to trial, most are tried to jurors and about 89 percent result in guilty verdicts in the federal system;3) Historical disparity in prison terms for white collar versus violent crime or

narcotics offenses;4) Lot's of crowded prisons of varying

degrees of security.

Cooperators of justice:Must be convinced of 3 ideas

You are in serious trouble; Only the prosecutor and law

enforcement can help you; Your cooperation will not get

you killed.

Cooperation agreement Criminal – agrees to plead guilty; Criminal – always will tell the truth; Criminal – will commit no more

crimes; Criminal - will meet with prosecutor

at his demand; Criminal - will testify in court.

Consequences of violating Agreement

If the agreement is violated, it is void (even if time has passed);

Everything said can be used against criminal;

Can also be charged with obstruction.

US law enforcement officers may present an opportunity to commit a crime as part of an investigation:

1) must have evidence that defendant pre- disposed to commit the crime;

    2) usually use a cooperating defendant or

information from a cooperating defendant

        - to establish predisposition; and         - to design a scenario that the defendant

understands and is comfortable with

US prosecutors and investigators may also follow or join in a crime in progress

by introducing an under cover agent or cooperating defendant or by means including:• wire tapping phones without any

participant aware• recording individual conversations by a

participant • installing bugs in public places• Seizing trash • Placing gps devices on cars, boats,

planes

Undercover Operatives: 2 types

Police officers under cover

Criminals cooperating under plea agreements

All cases made through the use of plea and cooperation agreements –

A tool you now have in the CPC