[Senate Executive Report 104-3]
[From the U.S. Government Publishing Office]
104th Congress Exec. Rept.
SENATE
1st Session 104-3
_______________________________________________________________________
TREATY WITH PANAMA ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS
_______
May 5 (legislative day, May 1), 1995.--Ordered to be printed
_______________________________________________________________________
Mr. Helms, from the Committee on Foreign Relations, submitted the
following
R E P O R T
[To accompany Treaty Doc. 102-15]
The Committee on Foreign Relations, to which was referred
the Treaty Between the United States of America and the
Republic of Panama on Mutual Assistance in Criminal Matters,
With Annexes and Appendices, signed at Panama on April 11,
1991, having considered the same, reports favorably thereon,
and recommends that the Senate give its advice and consent to
ratification thereof subject to two provisos as set forth in
this report and the accompanying resolution of ratification.
Purpose
The Treaty Between the United States of America and the
Republic of Panama on Mutual Assistance in Criminal Matters,
With Annexes and Appendices, hereinafter ``The Treaty,''
provides for the sharing of information and evidence related to
criminal investigations and prosecutions, including drug
trafficking and narcotics-related money laundering. Both
parties are obligated to assist in the investigation,
prosecution and suppression of offenses in all forms of
proceedings (criminal, civil or administrative).
Background
On April 11, 1991, the United States signed a treaty with
the Republic of Panama on mutual assistance in criminal matters
and the President transmitted the Treaty to the Senate for
advice and consent to ratification on October 24, 1991. In
recent years, the United States has signed similar mutual legal
assistance treaties (MLATs) with many other countries as part
of an effort to modernize the legal tools available to law
enforcement authorities in need of foreign evidence for use in
criminal cases. There are twelve mutual legal assistance
treaties currently in force in the U.S.
Negotiation of the Treaty spanned several years and talks
were renewed almost immediately after the restoration of a
democratic government to Panama and the entry into office of
the elected government of Guillermo Endara in December, 1989.
Early drafts of the Treaty were vigorously opposed by the
banking and legal communities in Panama, apparently because
they feared it would neutralize the benefits of the bank
confidentiality laws which have enabled Panama to attract money
in competition with other offshore financial centers in the
region, such as the Bahamas and the Cayman Islands.
In late March, 1991, the United States and Panama agreed to
renew negotiations on a treaty using a draft text essentially
identical to the mutual legal assistance treaty which the
United States signed with the Bahamas in 1989. An
``understanding'' was prepared to accompany the draft Treaty
and clarify its terms. The negotiations were successfully
concluded, and as a result, the mutual assistance Treaty, with
the ``understanding'' included as an annex, was signed April
11, 1991. The Legislative Assembly of Panama approved the
mutual assistance treaty on July 15, 1991, at a special session
convened by President Endara exclusively for that purpose.
President Endara signed the law ratifying the Treaty on July
22, 1991, and it was published July 25, 1991 in the ``Official
Gazette.''
Major Provisions
MLATs generally impose reciprocal obligations on parties to
cooperate both in the investigation and the prosecution of
crime. MLATs are increasingly extending beyond their role as
vehicle for gathering information to include ways of denying
criminals the ``fruits and instrumentalities'' of their crimes.
This includes such things as money or other valuables either
used in the crime or purchased or obtained as a result of the
offense. Below are key provisions of this Treaty.
Article 1 sets out the obligations of the Parties to
mutually assist in the investigation, prosecution, and
suppression of covered offenses and in related proceedings.
This article makes clear that all requests are to be executed
in accordance with the laws of the Requested State.
Article 3 permits a Requested State to deny assistance if:
(1) the request relates to a political offense, (2) execution
of the request would prejudice the security or essential
interests of the Requested State, (3) the evidence relates to a
trial of a person for an offense for which the person has
previously been acquitted, convicted, or otherwise put in
jeopardy, (4) there are substantial grounds to believe that the
request would facilitate prosecution on account of race,
religion, nationality, or political opinion, or (5) there is a
lack of sufficient evidence that a crime has been committed and
that the information sought relates to the offense.
Article 8 prohibits a requesting State from using evidence
or information provided under the Treaty, or any information
derived from information or evidence provided under the Treaty,
for purposes other than those stated in the request unless the
Requested State consents.
Article 9 permits a State to compel a person in the
Requested State to testify and produce documents there. Such
persons are compelled to provide testimony or evidence over
objections that the testimony would be improper under the law
of the Requesting State. Such objections are to be noted for
later resolution of authorities in the Requesting State.
Article 11 does not permit the compelled appearance of a
person in a Requesting State for testimony regardless of
whether the person is in custody or out of custody. A witness
may be invited to appear and the Requested State is to inform
the Requesting State promptly of the invited witness' response.
Article 14 sets out forfeiture assistance provisions. This
MLAT goes beyond merely requiring a State to inform the other
party to the Treaty when proceeds of criminal offenses are
believed to be there, but does limit notification obligations
to fruits and instrumentalities of ``serious offenses such as
drug trafficking.''
Article 16 provides for assistance in locating a person
described in a request, requiring each party make its best
efforts. The Treaty limits assistance to locating persons who
are needed in connection with the investigation, suppression,
or prosecution of a covered offense.
Committee Comments
The Committee on Foreign Relations recommends Senate advice
and consent to ratification of the Treaty with Panama on Mutual
Assistance in Criminal Matters. If ratified, the Treaty will be
an effective legal tool to assist both Governments in the
prosecution of a wide variety of modern criminals, including
members of drug cartels, ``white collar criminals,'' and
terrorists. However, the Committee supports a proviso, as
provided in all other MLATs with Latin American countries, that
makes clear that the United States must deny any request for
assistance by the Panamanian Government when a senior
government official with access to the information provided
under the Treaty is engaged in or facilitates the production or
distribution of illegal drugs. To permit a request for
assistance under such circumstances would undermine the purpose
and effectiveness of the Treaty. The resolution of ratification
also contains a proviso that states that the Treaty does not
require or authorize legislation or action prohibited by the
United States Constitution.
The Treaty covers a broad range of offenses, except pure
cases of tax evasion. Narcotics-related money laundered or tax
cases involving unreported income acquired through drug
trafficking are considered offenses under the Treaty. The
Parties agree to mutual assistance in the investigation,
prosecution and suppression of specified offenses and in all
related proceedings. The Treaty provides for various forms of
assistance, including the provision of documents, records and
evidence; the execution of requests for search and seizure; the
immobilization of forfeitable assets; and the obtaining of
witness testimony. The Treaty does not provide for assistance
in response to requests from private or other third parties.
The use of MLATs as a means of international legal
assistance is propelled by an explosion of transnational crime,
particularly illegal drug trafficking. Crime, in part conducted
abroad and culminating in the United States, as well as certain
types of acts, such as terrorism, committed wholly abroad
against U.S. interests and nationals, has given rise to a need
for expanded U.S. criminal jurisdiction. The Committee notes
that as law enforcement increasingly is focused on activities
and assets abroad, the limitations of traditional methods of
obtaining evidence, such as letters rogatory, and other
assistance in foreign countries are more apparent.
The Committee supports ratification of the Treaty as a
positive step to bring to justice criminals that act
transnationally to harm U.S. interests and nationals. Panama is
a major transhipment point for cocaine destined for the United
States and Europe. Panama continues to be a haven for narcotics
related money laundering because of its numerous banks and
trading companies, dollar-based economy, and traditional
laissez-faire attitude toward the movement of money. The
Government of Panama has taken strides to combat crime in these
areas, criminalizing drug-related money laundering, mandating
reporting of suspicious transaction reporting, and extending
cash transaction reporting obligations to non-financial
institutions. This Treaty will be an important step in further
soliciting the strengthening Panamanian cooperation in
combatting narco-trafficking and money laundering. The
Committee therefore recommends that the Senate grant early
advice and consent to ratification.
Committee Action
The Committee on Foreign Relations held three public
hearings to consider ratification of the Treaty. On May 6,
1992, in a hearing before the Subcommittee on Terrorism,
Narcotics and International Operations, testimony was received
from R. Grant Smith, Principal Deputy Assistant Secretary,
Bureau of International Narcotics Matters at the Department of
State, and David Kriskovich, Director of the International
Criminal Investigative and Training Assistance Program at the
Department of Justice. On April 20 and 21, 1994, the
Subcommittee heard testimony during two days of hearings in
tandem with testimony regarding recent developments in
transnational crime affecting U.S. law enforcement and foreign
policy.
The Committee considered the Convention at its business
meeting on May 2, 1995, and voted by voice vote with a quorum
present to report it favorably to the Senate for its advice and
consent.
Article-by-Article Analysis
article 1--obligation to assist
The first article of the Treaty provides for assistance in
all matters involving the investigation, prosecution, and
suppression of offenses and in proceedings connected therewith.
The term ``offenses'' is defined in Article 2 of the Treaty,
and further defined in the Annex. That definition must be kept
in mind in reading this paragraph. The Treaty could be invoked
in matters where no criminal prosecution or investigation is
pending, such as a civil forfeiture proceeding involving assets
acquired through a criminal offense covered by the treaty.
The second paragraph of the article lists the major types
of assistance specifically considered by the negotiators of the
treaty. Each of the items listed in the second paragraph is the
subject of an article later in the treaty which describes in
detail the procedure and conditions for that kind of
assistance. Thus, the second paragraph serves as something of a
``table of contents'' to much of the remainder of the treaty.
This list of types of assistance, however, is not intended to
be exhaustive, as indicated by the word ``include'' in the
first clause, and by subsection 2(i), which permits assistance
for any other matter mutually agreed upon by the Contracting
Parties.
The third paragraph provides that the Treaty is solely a
statement of the rights and obligations between the Government
of the United States and the Government of the Republic of
Panama, and that the treaty is not intended to be utilized by
individuals or nongovernmental entities in either State. Thus,
private parties may not invoke the treaty in order to obtain
evidence from the other country. Both negotiating delegations
agreed that the purpose of this treaty is to enhance the
effectiveness of criminal law enforcement authorities, not to
provide alternative methods of evidence gathering for others,
such as criminal codefendants or litigants in civil matters. In
this regard, it is anticipated that any efforts by civil
litigants to obtain evidence from Panama for use in civil cases
will continue to be made by letters rogatory.\1\ The phrase
``or third parties'' was included in the second sentence
because the Panamanian delegation wanted the treaty to show
clearly that it is not a vehicle by which states who are not
parties to it can obtain access to evidence from one or the
other of the Contracting States. Thus, the United States could
not ask Panama under the treaty to provide evidence for use by
a third country.
\1\ See Article 18(1), which specifically provides that the treaty
does not affect or disturb other methods of international assistance.
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The fourth paragraph provides that all requests shall be
executed ``in accordance with and subject to the limitations of
the laws of the Requested State''. The delegations made it
clear that the primary purpose of this provision is to
recognize the Constitutional limitations of the Contracting
States. The Panamanian authorities stated that the treaty is
subject to all the limitations of Panamanian domestic law, but
there is nothing in the treaty which is in direct conflict with
Panamanian law.
Panama currently has no law specifically addressing the
execution of requests under a treaty of this kind. However,
Panamanian officials stated that the treaty will become
Panamanian law, with full force and effect, immediately upon
its entry into force, and that no implementing legislation is
needed or anticipated, because the treaty contains all the
authority needed to give it immediate effect. This is reflected
in paragraph 3 of the Annex to the treaty, which states:
This treaty provides the necessary legal authority to
carry out and fully implement all of its provisions to
their fullest scope (to the extent this legal authority
does not already exist) for all competent authorities
within the Governments of the respective Contracting
States; provided however, that as indicated in Article
1(4) nothing herein is intended to affect the
constitutional provisions of either State.
No implementing legislation is needed or anticipated for the
United States.
article 2--definitions
Article 2 defines the term ``offenses'' as used in the
treaty. The definition of this term clarifies the scope of the
obligation to assist, and hence of the treaty itself.
The first paragraph of Article 2 states that ``offenses''
includes all conduct punishable as a crime under the laws of
both the Requesting and Requested States. Extradition treaties
frequently condition the surrender of fugitive criminals on a
showing of ``double criminality,'' and this paragraph is to be
interpreted by both Parties in much the same manner as an
extradition treaty provision. In extradition cases, ``double
criminality'' can exist even when the countries call the crime
by different names, or place the crime in different categories,
or penalize it by different punishments. The double criminality
rule ``does not require that the name by which the crime is
described in the two countries shall be the same, nor that the
scope of liability shall be coextensive, or in other respects
the same . . .'' \2\ The test is whether the conduct which is
believed to have been committed in the requesting state would
constitute some criminal offense if committed in the requested
state.\3\ Thus, the double criminality test, properly applied,
would permit assistance in many United States offenses which
appear not to have exact statutory counterparts in Panama.\4\
The Parties will give a liberal interpretation to Article
2(1)(a) in order to aid one another in as many cases as
possible.
\2\ Collins v. Loisel, 259 US 309, 312 (1922); Brauch v. Raiche,
618 F.2d 843 (1st Cir. 1980). See also In Re Suarez-Mason, 694 F. Supp.
676 (N.D. Cal. 1988); United States v. Carlos Lehder-Rivas, 668 F.
Supp. 1523 (M.D. Fla. 1987).
\3\ United States v. McCaffery [1984] 2 All E.R. 570; Req. v.
Governor of Pentonville Prison, ex Parte Budlong and another [1980] 1
All E.R. 701; Shapira v. Ferrandina, 478 F.2d 894 (2d Cir. 1973).
\4\ For example, ``racketeering'' in violation of Title 18, United
States Code, Section 1962, is a crime which does not have a precise
counterpart in Panamanian statutory law. However, racketeering charges
always involve a pattern of criminal activity including two or more
``predicate acts'' of criminal behavior. Panamanian authorities asked
to assist us under the treaty in a racketeering case will be expected
to look to the predicate acts allegedly committed by the offender and,
if those acts would be criminal in Panama, the double criminality rule
will have been satisfied. Similarly, United States laws on insider
trading have no exact counterpart in Panama's laws, but the United
States was assured that treaty assistance would be granted if the
conduct of the offender would be treated as fraud in Panama.
One common problem in this area was specifically discussed
during the negotiations with the Bahamas, and the language used
in the U.S.-Bahamas Treaty to address it is also used in the
treaty with Panama. Certain United States federal offenses are
described in statutes which call for proof of certain elements
(such as use of the mails or interference with interstate
commerce) to establish jurisdiction in the federal counts.
Foreign judges generally have no similar requirement in their
own criminal law (since few countries have the kind of federal
system we do), and on occasion have denied extradition of
fugitives on this basis. This problem should not occur under
Article 2(1)(a) of this treaty, since it is understood that the
Requested State will disregard elements of an offense required
solely for the purpose of establishing federal jurisdiction \5\
and will not be misled by mere differences in the terminology
used in defining the offense under the laws of each country.
\5\ See United States v. Herbage, 850 F.2d 1463 (11th Cir. 1988);
United States v. McCaffery, supra note 4.
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Representatives of the United States and Panama discussed
Article 2(1)(a) of the treaty in some detail, and it appears
that most major criminal prosecutions in the United States
except pure tax cases would qualify for assistance under the
double criminality test, properly applied.
However, Panamanian and United States laws do differ
significantly in some respects, and for this reason strict
adherence to the double criminality rule alone might render
assistance unavailable to the Requesting State in some areas in
which no public policy in the Requested State would call for
such a restriction. Therefore; in order to accommodate each
country's investigative and prosecutive needs, the treaty
permits assistance to be granted in five specific areas without
regard to double criminality. For crimes which fall within
these categories, it is enough that the conduct under
investigation ``arises from, relates to, results from, or
otherwise involves'' a crime punishable by more than one year's
imprisonment in the Requesting State.
The phrase ``arises from, relates to, results from, or
otherwise involves'' is intentionally broad. It includes crimes
such as attempting or conspiring to commit an offense on the
list as well as actually committing such an offense; it also
includes racketeering charges which rely upon a listed offense
as a predicate offense, or tax crimes involving funds acquired
through the commission of a listed offense, if the conditions
of Article 2(2) are met.
Article 2(1)(b) lists five kinds of crimes for which double
criminality is unnecessary:
1. Crimes relating to illegal narcotics trafficking.
Panama has extensive anti-drug trafficking legislation,
and it appears that most significant criminal narcotics
investigations or prosecutions in the United States
would fall comfortably within Article 2(1)(a). However,
due to the importance of the treaty in reinforcing
bilateral anti-narcotics efforts, this provision
insures that double criminality will not be a barrier
to cooperation. In the annex which accompanies the
treaty, the parties state that, ``The traffic in drugs
is a serious problem to both countries, and it is
intended that this treaty will be a valuable tool to
enhance investigations aimed at halting these offenses.
Both the United States and Panama are parties to the
Single Convention on Narcotic Drugs, 1961 as amended by
the 1972 Protocol, which obliges the signatories to
provide assistance to each other in narcotics
investigations. The obligation undertaken here is
consistent with that set out in these multilateral
conventions, since neither the Single Convention nor
the Amending Protocol conditions the obligation to
provide assistance on double criminality.''
2. Theft;
3. A crime of violence. In the annex which
accompanies the treaty, the Parties state that this
language was intended to cover ``Crimes of violence,
such as bank robbery, extortion, or terrorism-related
crimes,'' like the similar language in the U.S.-Bahamas
Treaty;
4. Fraud or the use of fraud, including the obtaining
of money or property by false pretenses,
representations, or promises and including the
commission of embezzlement, and all conduct which has
the effect of defrauding the government or its citizens
or the ability to conduct their affairs free from
fraud, false statements and deceit. The annex explains:
``This subparagraph would include mail or wire fraud,
most securities laws violations involving fraud or
fraudulently obtained profits . . .'' However, the
annex also makes it clear that ``the subparagraph would
not include tax evasion cases not related to other
offenses covered by this Treaty . . .'' The treaty with
the Bahamas requires assistance in investigations or
prosecutions involving the operators of large scale tax
shelter frauds,\6\ but it is not clear from the
negotiations with Panama whether the treaty with Panama
requires similar assistance, and it is anticipated that
such requests will be assessed on a case by case basis;
\6\ These, or course, are the cases in which gullible victims are
persuaded by fraud artists to pay money for ``investments'' which are
advertised as having been structured to result in the victims' avoiding
or substantially reducing his federal income tax. Then the offenders
often simply pocket the money, and provide the victim with fraudulent
documents purporting to reflect the investment. Since the Internal
Revenue Service usually disallows any tax benefits based on
participation in the scheme, the victim actually loses twice--he loses
the money he paid to the tax shelter promoter to invest on his behalf,
and he also fails to obtain the tax benefits for which he paid.
5. Violations of a law of one of the contracting
states relating to currency or other financial
transactions as an integral element contributing to the
commission of any offense within the meaning of the
foregoing provisions of this paragraph. Since the fight
against money laundering is a major United States law
enforcement priority, it was important that the treaty
provide for assistance in money laundering
investigations. The annex states: ``This subparagraph
should cover most violations of Title 31, United States
Code, and is focussed on crimes involving money
laundering or other violations of the currency or
financial transaction reporting laws which contribute
to drug trafficking or other offenses.'' It is
important to note that money laundering is treated as a
crime for which double criminality is not necessary,
because at present Panamanian law only covers the
laundering of drug proceeds,\7\ while United States
money laundering legislation is much more extensive.
The Panamanian authorities assured the United States
that this clause permits Panama to provide assistance
in United States investigations of the laundering of
money derived from any crime covered by the Treaty,
even in circumstances in which there would be no money
laundering prosecution possible under current
Panamanian law. However, the United States request must
show that the money allegedly laundered was obtained
from an offense covered by the Treaty, either under
Article 2(1)(a)'s ``double criminality'' or Article
2(1)(b)'s exceptions to double criminality.\8\ An
investigation into the laundering of money acquired
through a tax offense unrelated to any other crime
would fall within the exclusion in Article 2 (2).
\7\ Law 23 of December 30, 1986.
\8\ The Panamanian delegation stated that it is not necessary that
the money launderer actually knew that the money was the fruit of a
crime covered by the treaty so long as the money is in fact the result
of such a crime.
Article 2(2), like Article 3(1) of the U.S.-Cayman Treaty
and Article 2(2) of the U.S.-Bahamas Treaty, permits denial of
assistance when the matter is one which relates directly or
indirectly to the regulation of taxes, including the
imposition, calculation, and collection of taxes. The annex
states: ``The subparagraph specifically notes that exceptions
to this restriction exist where the monies involved in the tax
matter were derived from any activity covered by Article
2(1)(a) or 2(1)(b). For example, a criminal tax prosecution in
the United States involving unreported income acquired through
illegal drug trafficking could qualify as an offense for which
assistance could be provided under the Treaty.''
Article 2(3) defines the kinds of proceedings in aid of
which treaty requests can be made.
Article 2(3)'s first subparagraph states that criminal
trials in either country, or pretrial motions in connection
with such trials, may be the basis for request for assistance.
The second subparagraph states that United States grant
jury proceedings can be the basis of requests. The
corresponding legal process in Panama is called a preliminary
investigation, and the subparagraph specifies that these too
can be the basis of treaty requests.
Article 2(3)(c) states that the Treaty will be available in
judicial or administrative hearings involving the forfeiture of
the fruits or instrumentalities of drug trafficking. This is
fully consistent with the provisions of Article 14 of the
treaty, which is discussed in more detail below.
Under United States law, there are some civil or
administrative proceedings which could impose sanctions on an
offender in connection with a criminal matter in the United
States. For instance, the Securities and Exchange Commission
can order a securities trader to disgorge unlawfully obtained
profits, or surrender stock obtained in violation of the law;
the Commodities Futures Trading Commission can bar a trader
from the United States commodities market; and any United
States court can order restitution to the victims of an
offense. The United States believes that the imposition of
sanctions of this kind sometimes can be as important in
deterring unlawful activities as criminal prosecution.
Therefore, Articles 2(2)(d) and 2(2)(e) permit the Central
Authority, in his discretion, to apply the treaty to a request
involving proceedings of this kind.
Both delegations agreed that the provisions of Article 2
generally do not authorize assistance to investigations in
either Contracting State which are not being pursued by
prosecutorial authorities. This is consistent with all other
United States mutual legal assistance treaties, and reflects
the fact that the courts in the United States have ruled that
United States law does not permit such assistance.\9\
\9\ See In Re Letter of Request to Examine Witnesses From the Court
of Queen's Bench of Manitoba, Canada, 59 F.R.D. 625 (N.D. Cal. 1973),
aff'd 488 F.2d 511 (9th Cir. 1973).
article 3--limitations on compliance
Article 3(1) specifies classes of cases in which assistance
may be refused under the Treaty.
Article 3(1)(a), like the similar provision in other
treaties of this kind, permits assistance to be refused if the
assistance would prejudice the security or ``essential public
interests'' of the Requested State. The United States intends
to apply this provision sparingly, and views ``essential public
interests'' as those ancillary to national security. The
Panamanian delegation agreed, but did point out that in
exceptional cases the phrase could include essential interests
unrelated to national military or political security. It is
clearly understood that ``public interest'' will not be
interpreted in a manner to convert the treaty's mandatory
provisions into discretionary ones, and that the need to
nurture bank confidentiality, standing alone, will not be cited
as the kind of ``essential public interest'' authorizing a
denial of assistance.
This provision would be invoked if the execution of a
request would violate essential United States interests related
to the fundamental purposes of the Treaty. One fundamental
purpose of the Treaty is to enhance law enforcement
cooperation, and attaining that purpose would be hampered if
sensitive law enforcement information available under the
Treaty were to fall into the wrong hands. Recent cases in
various countries demonstrate that Government officials are not
immune to the temptation posed by the enormous profits offered
by criminal syndicates or drug traffickers. The United States
Central Authority would invoke Article 3(1)(a) to decline to
provide sensitive or confidential drug related information
pursuant to a request under this Treaty whenever it determines,
after appropriate consultation with law enforcement,
intelligence, and foreign policy agencies, that a senior
foreign government official who will have access to the
information is engaged in or facilitates the production or
distribution of illegal drugs and is using the request to the
prejudice of a United States investigation or prosecution.\10\
\10\ This is consistent with the sense of the Senate as expressed
in its advice and consent to ratification of the mutual legal
assistance treaties with Argentina, Uruguay, Spain, and Jamaica, on
July 2, 1992, and with Mexico, Canada, Belgium, Thailand, the Bahamas,
and the United Kingdom Concerning the Cayman Islands. See Cong Rec
13884, October 24, 1989. See also Mutual Legal Assistance Treaty
Concerning the Cayman Islands: Report by the Comm. on Foreign
Relations, 100th Cong., 2nd Sess. 67 (1988) (Testimony of Deputy
Assistant Attorney General Mark M Richard).
Article 3(1)(b) permits the Central Authority of the
Requested State to deny a request if it relates to a political
offense. Similar restrictions are found in other mutual legal
assistance treaties.
Article 3(1)(c), like Article 3(1)(c) of the U.S.-Bahamas
Treaty, permits the Requested State to deny a request if the
evidence requested is to be used to try a person in the
Requesting State on a charge for which that person has already
been acquitted or convicted in that State, or a charge for
which the person was in jeopardy of being convicted, as
jeopardy is defined in the law of the Requesting State.
Article 3(1)(d), also inspired by the U.S.-Bahamas Treaty,
permits a request to be denied if the Central Authority
determines that there are substantial grounds for believing
that granting the assistance would facilitate the prosecution
or punishment of the person identified in the request on
account of his race, religion, nationality, or political
opinions. This provision was of special importance to Panama,
because it has a multiracial society and because the free
expression of political opinion was ruthlessly suppressed under
General Manuel Noriega's dictatorship. The United States
understands the term ``on account of'' to limit the application
of this provision to cases in which the race, religion, or
political opinion of the offender is the governing motive for
the prosecution, as opposed to the desire to punish criminal
offenses. Where a request to the United States Central
Authority will ask the Department of State to assist in
determining whether the request should be denied on this basis.
Article 3(1)(e) is based on Article 3(2)(c) of the U.S.-
Cayman Treaty and Article 3(1)(e) of the U.S.-Bahamas Treaty,
and permits the Central Authority of the Requested State to
deny a request if it finds that the request fails to contain
reasonable grounds to believe that a crime was committed, or
that the information sought in the request is not relevant to
that crime, or that the requested information is not in the
territory of the Requested State. The phrase ``reasonable
grounds to believe'' is not the equivalent of a prima facie
case, and it certainly is not intended to require either State
to prove the guilt of the suspects beyond a reasonable doubt.
Since many requests will be made at the investigative stage, it
is unreasonable to oblige the Requesting State to prove the
case before the evidence has been assembled against the
suspects. The phrase ``reasonable grounds to believe'' also
does not equate to the ``probable cause'' requirement in United
States law for the issuance of a search or arrest warrant.
Rather, the phrase was intended to require only that each State
support each request with a precise, rational explanation for
its belief that a crime covered by the Treaty has occurred or
will occur. This will usually involve describing facts
indicating the offense has occurred, and setting forth the
justification for seeking the evidence. This provision thereby
assures the Requested State that the request is not a ``fishing
expedition.'' It is anticipated that neither State will allow
challenges to the credibility of statements in the request, nor
demand that the Requesting State supply ``evidence'' or
affidavits to support the request. Instead, the Central
Authority of the Requested State has the discretion to reject a
request if it is convinced that the information in the request
(which is presumed to be true) fails to make out a case for
producing the evidence.
Finally, Article 3(1)(f) permits the Central Authority to
deny assistance if the request does not conform to the Treaty.
This would include requests which fail to contain all of the
requisite information.
Article 3(2) is similar to Article 3(2) of the U.S.-Swiss
Treaty, and permits the Requested State to impose appropriate
conditions on its assistance in lieu of denying a request
outright. For example, either State might request information
from the other which could be used either in a routine criminal
prosecution or in a prosecution not covered by the Treaty. This
paragraph would permit the Requested State to provide the
information on the condition that it be used only in the
routine criminal case. It is anticipated that the Requested
State would notify the Requesting State of proposed conditions
before actually delivering the evidence, thereby according the
Requesting State an opportunity to indicate whether it is
willing to accept the evidence subject to the conditions. If it
does accept the evidence, it must respect the conditions
specified by the Requesting State with respect to the evidence.
Article 3(3) states that a request for assistance need not
be executed immediately where execution would interfere with an
investigation or legal proceeding in progress in the Requested
State. The Central Authority of the Requested State will
determine when to apply this provision. The Central Authority
of the Requested State may, in its discretion, take such
preliminary action as it deems advisable to obtain or preserve
evidence which might otherwise be lost before the conclusion of
the investigation or legal proceeding taking place in that
State. If this is done, the Requesting State should not be
seriously disadvantaged by having to wait until the conclusion
of the proceedings in the Requested State.
Article 3(4) effectively requires that the Central
Authority of the Requested State promptly notify the Central
Authority of the Requesting State of the reason for denying or
postponing execution of the request. Thus, when a request is
refused or only partly executed, the Requested State will
provide some explanation for not providing all of the
information or evidence sought. This will eliminate
misunderstandings which can arise in the operation of the
Treaty, and enable the Requesting State to better prepare its
requests in the future.
article 4--central authorities
Article 4 of the Treaty provides that each State shall
designate a ``Central Authority.'' The United States Central
Authority will make requests to Panama on behalf of federal
agencies, state agencies, and local law enforcement authorities
in the United States, and Panama's Central Authority will make
all requests emanating from the authorities there. It is
understood that some discretion will be exercised by the
Central Authority of the Requesting State as to the form and
content of requests, and as to the number and priority of
requests. The Central Authority of the Requested State is
responsible for receiving each request from the other,
transmitting it to the appropriate federal or state agency,
court, or other authority for execution, and ensuring that a
timely response is made.
Article 4(2) provides that the Attorney General will be the
Central Authority for the United States, as is the case under
all United States mutual legal assistance treaties. The
Attorney General has delegated his duties as Central Authority
under mutual assistance treaties to the Assistant Attorney
General in charge of the Criminal Division under 28 C.F.R.
Sec. 0.64-1.\11\
\11\ The Assistant Attorney General for the Criminal Division has
in turn redelegated his authority to the Deputy Assistant Attorneys
General and to Director of the Criminal Division's Office of
International Affairs. Directive No. 81, 44 FR 18661, March 29, 1979,
as amended at 45 FR 6541, January 29, 1980; 48 FR 54595, December 6,
1983.
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Article 4(3) states that the Minister of Government and
Justice of Panama will serve as the Central Authority for
Panama. Panamanian authorities said that the Minister of
Government and Justice will review requests from the United
States under the treaty and forward them to the Panamanian
Attorney General or other competent authority for prompt
execution. The Panamanian authorities explained that in Panama
the Attorney General is not a part of the executive branch of
Government, and hence is not politically accountable to the
President in the same way that the Minister of Government and
Justice is accountable. For this reason, the Panamanian
Government believes it is appropriate that it be the Minister
of Government and Justice, not the Attorney General, who
considers and exercises the discretionary bases for denial of
requests outlined in Article 3. Once the request has passed
this policy level review by the Minister of Government and
Justice, it generally will be the function of the Attorney
General to make the actual arrangements for execution of the
request when compulsory process is necessary to carry out a
request. In other instances, the Ministry envisions sending
requests directly to the appropriate Panama Government office
for execution (e.g., to the Public Registry for corporate
records checks, or the Technical Judicial Police for criminal
records checks).
article 5--Contents of Requests for Mutual Assistance
This article is similar to Article 29 of the U.S.-Swiss
Treaty, which, in turn, is based on Article 14 of the European
Convention on Mutual Assistance in Criminal Matters.\12\
\12\ Council of Europe Convention No. 30 (United States not a
party) 472 UNTS 185.
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The first paragraph requires that requests be made in
writing if compulsory process--judicial subpoenas, search
warrants, or the like--are necessary for execution, or if the
Requested State has indicated that a written request is
necessary. In an emergency, an oral request could be made, but
it must be confirmed in writing ``forthwith.''
Article 5(2) lists information which is deemed crucial to
efficient operation of the agreement, and so must be included
in each request. Article 5(3) outlines the kinds of information
which should be provided ``to the extent necessary and
possible.'' In keeping with the intention of the parties that
requests be as simple and straightforward as possible, there is
no requirement under the Treaty that a request be legalized or
certified in any particular manner.
Because this article of the Treaty is based on Article 5 of
the U.S.-Bahamas treaty, no specific mention is made of the
language in which the requests are to be presented by the
parties. However, the language issue was discussed by the
negotiators, and it was mutually agreed by Panama and the
United States that requests for assistance under the treaty
will be submitted in the language of the Requested States
unless, in exceptional circumstances, the parties agree
otherwise.
article 6--execution of the request
The first paragraph of Article 6 requires each State to
promptly undertake diligent efforts to execute a request. The
Central Authority which receives a request will first review
the request and immediately notify the Central Authority of the
Requesting State if it is of the opinion that the request does
not comply with the treaty's terms. If the request does satisfy
the treaty's requirements and the assistance sought can be
provided by the Central Authority itself, the request will be
fulfilled without delay. If the request meets the treaty's
requirements but execution requires action by some other agency
in the Requested State, the Central Authority will see to it
that the request is promptly transmitted to the correct agency
for execution. Where the United States is the Requested State,
it is anticipated that most requests will be transmitted to
federal investigators, prosecutors, or judicial officials for
execution. However, a request may be transmitted to state
officials for execution if the Central Authority deems it
proper to do so.
The first paragraph also authorizes and requires the
federal, state, or local agency or authority selected by the
Central Authority to use all legal means within its power to
execute the request. The negotiators specifically discussed the
fact that the Treaty--and this article in particular--provided
all necessary legal authority (i.e., powers or affirmative
authority to act) necessary for Panamanian officials to carry
out obligations undertaken by the Panamanian Government in the
Treaty. This understanding is addressed in paragraph 3 of the
Annex.
This provision was not intended to authorize the use of the
grand jury in the United States for the collection of evidence
pursuant to a request from Panama. Rather, it is anticipated
that when a request from Panama requires compulsory process for
execution, the Department of Justice would ask a federal court
to issue the necessary process or court order under 28 U.S.C.
Sec. 1782 and this treaty.
If execution of the request entails action by a judicial or
administrative agency, the Central Authority of the Requested
State shall arrange for the presentation of the request to that
court or agency at no cost to the other State. Since the cost
of retaining foreign counsel to present and process letters
rogatory requests abroad is sometimes quite high, this
provision for reciprocal legal representation should be a
significant advance in bilateral legal cooperation. Should the
Requested State choose to hire private counsel in connection
with a particular request, it is free to do so.
article 7--costs
Article 7 proceeds from the basic premise that the
Requesting State should bear all expenses incurred in the
execution of the request except for the costs of the
presentation of its request to the appropriate authorities in
the Requested State, which is provided at no cost pursuant to
Article 6, and the ordinary expenses (such as filing fees and
the like) connected with legal proceedings in the Requested
State.
The United States expects that this Article will be applied
in the same way as the corresponding article in the U.S.-
Bahamas Treaty. During the negotiations with the Bahamas, a
recurring problem in this area was specifically addressed: the
cost of legal representation of witnesses. When United States
authorities serve a subpoena in the United States to obtain
testimony from an individual or institution here, the recipient
of the subpoena is ordinarily entitled to no more than a modest
stipend or ``witness fee.'' \13\ Of course, the witness is free
to seek advice of legal counsel with respect to whether and how
to respond. However, the witness has no constitutional or
statutory right to call upon the United States Government to
pay for such legal consultation.
\13\ For example, under federal law a witness is currently entitled
to $30 a day witness fee and up to $75 a day ``subsistence.'' 28 U.S.C.
Sec. 1821.
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On the other hand, the United States has occasionally asked
individuals or institutions abroad to cooperate with one of our
criminal investigations, and been told by the witness that the
bank or business secrecy laws of the witness' country bar him
from doing so unless certain steps are taken (such as obtaining
the permission of the local courts). The United States
routinely agrees to assist the witness in any appropriate way
which does not involve paying legal fees associated with the
matter.
During the negotiations with the Bahamas, the United States
delegation was concerned because when the United States makes a
request to another country for evidence through letters
rogatory, and the courts in that country summon the individual
or institution to provide the evidence, the witness sometimes
insists that the United States should pay for consultation with
counsel in connection with the summons. Both delegations agreed
that it is unfair to call upon the Requesting State routinely
to pay the legal expenses of witnesses responding to the
Requested State's compulsory process issued pursuant to
requests under the treaty. Where the witness is responding to a
command from the court in his own country (rather than a
request from a foreign government) to produce evidence or to
provide testimony, the role (if any) \14\ of witness counsel
and payment of such counsel should be governed by the same
rules which would apply in any other proceeding before that
court. The fact that the local court's command is issued in aid
of a foreign prosecution should not oblige the foreign
government to pay expenses not ordinarily incurred in similar
proceedings in the Requested State. Witnesses subpoenaed in the
United States in connection with a foreign country's letters
rogatory under 28 U.S.C. Sec. 1782 do not receive reimbursement
for the costs of counsel, and neither the United States
Government nor any partners to the mutual legal assistance
treaties now in force have ever suggested that the Requesting
State bear such costs in connection with a request.
\14\ For an example of the kind of difficulties which can be
encountered when counsel for witnesses are involved, see Req. v.
Rathbone, Ex p. Dikko, [1985] 2 W.L.R. 375.
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Based on these considerations, the U.S.-Bahamas Treaty
provides that witness fees are not a cost for which the
Requesting State is responsible under subsection 7(1) or 7(2).
Article 7 of the U.S.-Panama Treaty is based on this language.
Thus, it is clear that the treaty does not impose an obligation
on the Requesting State to finance legal consultation, but does
allow that State to agree, on a case by case basis, to pay for
``extraordinary expenses'' in situations in which it deems it
especially just and appropriate to do so.
article 8--limitations on use
The first paragraph of Article 8 requires that information
provided under the treaty will not be used for any purpose
other than that stated in the request under Article 5(2)(e)
without the consent of the Central Authority of the Requested
State.
The second paragraph requires that the State which has
obtained evidence keep the evidence confidential. Under most
United States mutual legal assistance treaties, conditions of
confidentiality are imposed only when necessary, and are
tailored to fit the circumstances of each particular case.\15\
For instance, the Requested State may wish to cooperate with
the investigation in the Requesting State but choose to limit
access to information which might endanger the safety of an
informant, or unduly prejudice the interests of persons not
connected in any way with the matter being investigated in the
Requesting State. However, this Treaty, like the U.S.-Bahamas
Treaty, requires that all evidence provided in response to
requests under the treaty must be kept confidential unless
otherwise agreed.
\15\ U.S.-Netherlands Treaty, Article 11(1); U.S.-Colombia Treaty,
Article 8(2); U.S.-Italy Treaty, Article 8(1); U.S.-Canada Treaty,
Article 9(1); and U.S.-Thailand Treaty, Article 7(3).
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The Supreme Court has held that in some circumstances it
would violate the Constitution's due process guarantees for the
Government to suppress evidence which is exculpatory to the
accused.\16\ For this reason, Article 8(2) contains an
exception permitting the use of the information to the extent
that it is needed for investigations or prosecutions forming
part of the prosecution of the criminal offense described in
the request. This is consistent with the overall purpose of the
Treaty, which is the production of evidence for trial, and
which would be frustrated if the Requested State could let the
Requesting State see valuable evidence but impose restrictions
preventing the Requesting State from using the evidence. In the
event that disclosure of evidence obtained under the Treaty was
required in a proceeding involving a matter other than that
described in the request, the United States would be required
to consult in advance with the Government of Panama in order to
fashion a method of disclosure consistent with the requirements
of both States.
\16\ See Brady v. Maryland, 373 U.S. 83 (1963).
It is anticipated that some United States requests for
assistance may contain information which under our law must be
kept confidential. For example, it may be necessary to set out
information which is ordinarily protected by Rule 6e, Federal
Rules of Criminal Procedure, in the course of an explanation of
``the subject matter and nature of the investigation or
proceeding,'' as required by Article 4(2)(b). Therefore,
Article 8(5) of the treaty enables the Requesting State to call
upon the Requested State to keep the information in the request
confidential.\17\ If the Requested State cannot execute the
request without disclosing the information in question (as may
be the case if execution requires a public judicial proceeding
in the Requested State), or for some reason this
confidentiality cannot be assured, the treaty obliges the
Requested State to so indicate, thereby giving the Requesting
State an opportunity to withdraw the request rather than risk
jeopardizing its investigation or proceeding by public
disclosure of the information. This provision may be
particularly important in requests made to Panama because it is
not clear whether Panamanian financial institutions can
disclose financial documents regarding a customer without prior
notice to the customer even if the notice thwarts law
enforcement objectives.
\17\ It is quite similar to U.S.-Mexico Treaty Article 4(5); U.S.-
Canada Treaty, Article IX(2); and U.S.-Italy Treaty, Article 8(2).
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Once evidence obtained under the treaty has been revealed
to the public in a trial, that information effectively becomes
part of the public domain. The information is likely to become
a matter of common knowledge, perhaps even cited or described
in the press. When that occurs, it is practically impossible
for the Central Authority of the Requesting State to continue
to block the use of that information by third parties or other
government agencies. Therefore, some United States mutual legal
assistance treaties permit evidence obtained under the treaty
to be used for any purpose after it has become public in a
trial resulting from the proceedings described in the
request.\18\ However, Article 8(4), like the similar article in
the U.S.-Bahamas Treaty and the U.S.-Cayman Treaty, states that
once evidence obtained under the treaty has been made public in
a proceeding forming part of the request, the evidence may be
used if one of three exceptions apply.
\18\ See U.S.-Canada Treaty, Article XI(3).
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First, under Article 8(4)(a), the evidence can be used for
any purpose against persons who were convicted in a criminal
trial for an offense covered by the treaty. For example, if
evidence is provided under the treaty for use in a criminal
trial for fraud, and the defendant is convicted of the offense,
the evidence could be used by other government officials--
including tax authorities--against the convicted person for any
purpose, including assessing and collecting taxes due on the
fraudulently obtained funds.
Second, Article 8(4)(b) states that the evidence can be
used without restriction for any criminal prosecution of a
person for offenses falling within the treaty. This paragraph
applies regardless of whether the requesting State secured a
conviction of the person who was the defendant in the case upon
which the initial request was based. For instance, if evidence
is provided under the treaty for use in a criminal trial of Mr.
A on securities fraud charges, and the evidence reveals that
Mr. B also participated in the crime, the evidence may be
freely used to prosecute Mr. B even if Mr. A is acquitted at
trial. Similarly, if evidence were obtained in connection with
one treaty offense (such as fraud), and the evidence discloses
the commission of another treaty offense (such as murder), the
evidence could be used by the Requesting State in a prosecution
for that second treaty offense without violating this article,
even if no prosecution ever took place for the crime on which
the initial request was based.
Finally, Article 8(4)(c) authorizes the use of the evidence
in civil or administrative proceedings related to the recovery
of the unlawful proceeds of a criminal offense covered by the
treaty from a person who has knowingly received them. The
evidence may also be used in forfeiture to the government of
the unlawful proceeds or instrumentalities of a criminal
offense, or in collecting taxes or enforcing tax penalties
resulting from knowingly receiving the proceeds of a criminal
offense covered by the treaty. This is consistent with Article
14(2) of the treaty, which obliges the parties to assist one
another in the forfeiture of criminally obtained assets, in
securing restitution to the victims of crimes, and in enforcing
sentences involving fines.
Under Article 18(3), the restrictions outlined in Article 8
are for the benefit of the parties to the treaty--the United
States and Panamanian Governments--and the enforcement of these
provisions is left entirely to the Parties.
Article 9--Testimony in the Requested State
Paragraph 1 of Article 9 states that the Requested State
may compel a person within its jurisdiction to testify or
produce documents or articles needed as evidence in the
Requesting State. Paragraph 2 of the annex also points out that
this Article may be used by either Contracting State to obtain
currency transaction information from the other Contracting
State in connection with offenses covered by the treaty.
The compulsion \19\ contemplated by this article can be
accomplished by subpoena (if the Requested State's law so
provides) or any other means available under the law of that
country. This provision, read together with Article 1(4), means
that the procedure for executing a request under the treaty
would have to be one which conforms to the laws of the
Requested State. It should be stressed that it is the treaty
that determines whether assistance is required, and local law
should govern the very different (if equally important)
question of how the assistance is provided.
\19\ The use of the word ``may'' appears at first glance to allow
each Party to treat the execution of requests for testimony or
production of evidence as discretionary. That was not the intention of
the negotiators. Rather, the word ``may'' was used in the treaty in
order to make it clear that compulsory process is not required in every
case. For instance, a witness may be perfectly willing to provide the
needed testimony voluntarily, and the negotiators were concerned that
using the word ``shall'' instead of ``may'' might appear to oblige the
Requested State to issue a subpoena or other compulsory process even if
it were not necessary. The treaty establishes a mandatory obligation to
arrange the production of the requested testimony or evidence, leaving
it to the Requested State's discretion whether to use compulsory
process to meet that obligation.
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This article, read together with Article 1(5), insures that
no person would be compelled to furnish information if he has a
right not to do so under the law of the Requested State. Thus,
a witness questioned in the United States pursuant to a treaty
request from Panama may invoke any of the testimonial
privileges (such as attorney-client privilege, interspousal
privilege, etc.) usually available in proceedings here, as well
as the constitutional privilege against self-incrimination.\20\
A witness testifying in Panama may raise any of the privileges
available under Panamanian law.
\20\ This is consistent with Title 28, United States Code, Section
1782.
Since the law is unclear on the extent to which a person in
one country may stand on a privilege available only under the
law of a foreign country, the treaty neither requires nor
forbids the recognition in the Requested State of privileges
existing only in the Requesting State. Article 9(2) does
require that in cases in which a witness attempts to assert a
privilege which does not exist under the law in the Requested
State, the authorities in the Requested State will take the
desired evidence and turn it over to the Requesting State along
with notice that it was obtained over a claim of privilege. The
applicability of the privilege can then be determined in the
Requesting State, where the scope of the privilege and the
legislative and policy reasons underlying it are best
understood.\21\ A similar provision appears in many of our
recent mutual legal assistance treaties.
\21\ Cf. R. & J. Dick Co. v. Bass, 295 F. Supp. 758 (N.D. Ga.
1966); Reg. v. Rathbone, Ex p. Dikko [1985] 2 W.L.R. 375.
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The third and fourth paragraphs provide that all interested
parties, including the defendant and his counsel in criminal
cases, may be permitted to be present and, subject to the laws
of the Requested State, shall be allowed to pose questions
during the taking of testimony under this article.
Article 9(5) states that business records produced pursuant
to the treaty shall be authenticated by having a custodian of
the records or other qualified person complete, under oath, a
certification in a specified form. A model of the form to be
used by United States authorities excecuting a request from
Panama is appended to the treaty as Form A(1); a form for
Panamanian authorities to use in executing a request from the
United States is appended at Form A(2). Thus, the provision
establishes a procedure for authenticating foreign records in a
manner essentially similar to that followed in Title 18, United
States Code, Sec. 3505 or Sec. 29(c) of the Canada Evidence
Act. It is understood that the last sentence of the article
provides for the admissibility of authenticated documents
evidence without additional foundation or authentication. With
respect to both the United States and Panama, this paragraph is
self-executing, and does not need implementing legislation.
Article 10--Transferring Persons in Custody for Testimonial Purposes
In some recent criminal cases, a need has arisen for the
testimony at trial of a witness serving a sentence in another
country. In some instances, the country involved was willing
and able to ``lend'' the witness to the United States
Government, provided the witness would be carefully guarded
while here and returned at the conclusion of his testimony.\22\
In one or two recent cases, the United States Government was
able to arrange for federal inmates here to be transported to
foreign countries to assist in criminal proceedings there.
Paragraph 1 of Article 10 calls for mutual assistance in
situations of this kind, and thereby provides a legal basis for
cooperation in these matters. The paragraph is based on Article
26 of the U.S.-Swiss Treaty.
\22\ Federal law provides for this situation. See Title 18, United
States Code, Section 3508.
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There have also been recent situations in which a person in
custody in the United States in a criminal matter has demanded
permission to travel to another country to be present at a
deposition being taken there in connection with the case.\23\
The second paragraph of the article addresses this situation.
\23\ See United States v. King, 552 F. 2d 833 (9th Cir. 1976).
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The article's third paragraph provides express authority
for the receiving State to maintain the person in custody
throughout his stay there, unless the other State specifically
authorizes release. The paragraph also authorizes the receiving
State to return the person in custody to the other State, and
provides that this return will occur as soon as circumstances
permit, or as otherwise agreed, but in no event later than the
date on which the person would expect to be released from
custody in the State from which he was transferred. The
transfer of a prisoner under this article requires the consent
of the person involved and of both countries, but does not
require the prisoner to consent again to his return to the Sate
where the transfer began. Once the receiving State has agreed
to assist the sending State's investigation or proceeding
pursuant to this article, it would be inappropriate for the
receiving State to hold the person transferred and require
extradition proceedings before allowing him to return to the
sending State as agreed. Therefore, the paragraph states that
extradition proceedings will not be required before the return
of the person transferred.
article 11--testimony in the requesting state
This article provides that upon request the Requested State
shall invite witnesses who are located in its territory and
needed in the Requesting State to travel to the Requesting
State to testify there if at all possible. Of course, the
Requesting State would be expected to pay the expenses of such
an appearance, and the treaty provides that the witness shall
be informed of that fact, and of the amount and kind of
allowances and expenses which the Requesting State will provide
in a particular case. This information should be specified by
the Requesting State in its request, pursuant to Article
5(3)(e). An appearance in the Requesting State under this
article is not mandatory, and the prospective witness may
refuse the invitation.
article 12--safe conduct
This article, like Article 27 of the U.S.-Swiss Treaty,
provides that a person who is in the Requesting State to
testify or for confrontation purposes pursuant to a request
under Article 10 or 11 of the Treaty shall be immune from
criminal prosecution, detention, or any restriction on personal
liberty, or from the service of process in civil suit while he
is in the Requesting State. This ``safe conduct'' is limited to
acts or convictions which preceded the witness' departure from
the Requested State. This provision does not prevent the
prosecution of a person for perjury or other crimes committed
while in the Requesting State.
The article's applicability to a person transferred under
Article 10 is necessarily limited, since Article 10 requires
that a person be kept in custody unless the State from which he
was transferred has consented to his release.
The second paragraph states that the safe conduct
guaranteed in this article expires ten days after the person
has been officially notified that his presence is no longer
required, or if he leaves the Requesting State and thereafter
returns to it.
article 13--providing records of government agencies
Article 13 serves to insure speedy access to government
records, including records of the executive, judicial, and
legislative units at the federal, state, and local levels in
either country. The kinds of government information which will
be most commonly sought from Panama will include records from
the Registrar of Companies, the records of convictions in
Panamanian courts, or documents from the files of the police or
other investigative authorities. Panamanian requests to the
United States for government documents are expected to fall
generally in the same categories.
The first paragraph obliges each State to furnish to the
other copies of publicly available records of a government
agency. The term ``government agency'' includes executive,
judicial, and legislative units at the federal, state, and
local level in either country.
The second paragraph provides that the Requested State
``may'' share with its treaty partner copies of non-public
information in government files. The article states that the
Requested State may only utilize its discretionary authority to
turn over information in its files ``to the same extent and
under the same conditions'' as it would to its own law
enforcement or judicial authorities. It is the intention of the
negotiators that the Central Authority of the Requested State
determine what that extent and what those conditions would be.
This provision was made discretionary because government files
in each State contain some information which would be available
to investigative authorities in that State, but which would
justifiably be deemed inappropriate to release to a foreign
government. Examples of instances in which assistance might be
denied under this provision would be where disclosure of the
information is barred by law in the Requested State or where
the information requested would identify or endanger an
informant, prejudice sources of information needed in future
investigations, or reveal information which was made available
to the Requested State in return for a promise that it not be
divulged to anyone.
The third paragraph states that documents provided under
this article will be authenticated using a certificate in a
form appended to the treaty. Thus, the authentication will be
conducted in a manner similar to that required by Rule 902(3),
Federal Rules of Evidence, and the records will be admissible
into evidence without additional foundation or authentication.
The article refers to the provision of copies of government
records, but the Requested State would not be precluded from
delivering the original of the government records to the
Requesting State, upon request, if the law in the Requested
State permits it and if it is essential to do so.
ARTICLE 14--ASSISTING IN FORFEITURE PROCEEDINGS
A primary goal of the treaty is to enhance the efforts of
both States in the war against narcotics trafficking. One major
strategy in that drug enforcement effort by United States
authorities is to seize and confiscate the money, property, and
other proceeds of drug trafficking. Article 14, which is
identical to Article 14 of the U.S.-Bahamas Treaty and similar
to Article 17 of the U.S.-Canada Treaty, is designed to further
that strategy.
The first paragraph authorizes the Central Authority of one
State to notify the other of the existence in the latter's
territory of fruits or instrumentalities of a serious offense
such as drug trafficking. The term ``fruits and
instrumentalities'' would include things such as money or other
valuables either used in the crime or purchased or obtained as
a result of the offense.
Upon receipt of notice under this article, the Central
Authority of the State in which the objects are located may
take whatever action is appropriate under the law of the state.
For instance, if the assets in question are located in the
United States and are the fruit of a fraud in violation of
Panamanian law, the assets could be seized in aid of a
prosecution under 18 U.S.C. Sec. 2314, or in anticipation of
efforts by the lawful owner for the return of the assets. If
the assets are located in Panama and are the fruit of a fraud
in violation of United States law, it is expected that similar
action could be taken pursuant to Panamanian law.\24\ If the
assets are the result of drug trafficking, it is anticipated
that the parties will move quickly and expeditiously to freeze
them and ensure confiscation.\25\
\24\ For example, in 1978, about 900 members of the San Francisco-
based ``People's Temple'' cult died when their leader, the Rev. Jim
Jones, led them in a ritual of murder and mass suicide at the group's
commune in Guyana. At the request of the United States Justice
Department, the Panamanian Government froze $6 million in People's
Temple assets on deposit in Panama, on the grounds that the funds were
obtained from the cults' members by fraud. In 1980, these funds were
turned over to the United States to distribute to the families of the
victims and to reimburse the federal government for the expenses of
returning the victims' bodies to the United States. Associated Press,
February 29, 1980.
\25\ Panama has signed and the United States has signed and
ratified the United Nations Convention Against the Illicit Traffic in
Narcotic Drugs and Psychotropic Substances, done at Vienna December 20,
1988 and entered into force for the United States, November 11, 1990,
28 I.L.M. 493 (March 1989). Article 3 of the Convention obliges the
Parties to enact legislation to confiscate drug proceeds.
Title 18, United States Code, Sec. 981(a)(1)(B) also allows
the forfeiture to the United States of property ``which
represents the proceeds of an offense against a foreign nation
involving the manufacture, importation, sale, or distribution
of a controlled substance (as such term is defined for the
purposes of the Controlled Substances Act) within whose
jurisdiction such offense or activity would be punishable by
death or imprisonment for a term exceeding one year and which
would be punishable by imprisonment for a term exceeding one
year if such act or activity had occurred within the
jurisdiction of the United States.'' The United States
delegation expects that Article 14 of the treaty will permit
full implementation of this legislation.\26\
\26\ The United States legislation is consistent with the laws in
other States, such as Switzerland, Canada, and the United Kingdom, and
the movement among States is toward legislation of this kind for use in
drug enforcement.
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Similarly, in Panama, Law 23 of December 30, 1981, permits
the Panamanian Government to seize the proceeds of drug
trafficking committed anywhere in the world.\27\ Panamanian
authorities have relied on this statute to freeze drug money in
Panama when such funds were brought to its attention by United
States law enforcement authorities. Article 14 of the treaty
should permit United States and Panamanian authorities, working
together, to utilize Law 23 even more effectively.
\27\ Article 6 of Law 23 amends Article 261 of the Panamanian
Criminal Code to make it an offense to violate Panama's drug laws from
abroad, or to conduct transactions in Panamanian territory ``with
proceeds deriving from such drug-related crimes.'' Article 25 of Law 23
states: ``The investigations of crimes listed in Article 261 of the
Criminal Code, as amended by this Law, can also be initiated in
cooperation with or upon request by the State in which such crimes have
been committed.''
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The second paragraph of Article 14 states that the parties
to this treaty may aid one another in proceedings leading to
the forfeiture of the proceeds of crime. The traditional rule
was that no state is obliged to aid another in the execution of
penal laws respecting enforcement of fines or forfeiture of
criminal assets. However, this rule is gradually changing, at
least where the foreign country's laws are designed to provide
redress to individual victims, or where the foreign country has
already perfected its title to the assets it claims.\28\
Moreover, any country is free to assume a treaty obligation
broader than a customary international obligation. In Article
14(2), the parties to this treaty agree to aid one another, on
request, in proceedings leading to the forfeiture of illegally
obtained assets, restoring illegally obtained funds or articles
to their rightful owners, and the collection of fines imposed
as sentences in criminal prosecutions.
\28\ See, e.g., Mutual Assistance in Criminal Matters: A
Commonwealth Perspective, prepared by Dr. David Chaikin and
Commonwealth Secretariat for the meeting of Commonwealth Law Ministers,
Colombo, Sri Lanka, February 14-18, 1985, pp. 32-34.
Thus, if the law of the Requested State enables it to seize
assets in aid of a proceeding in the Requesting State or
enforce a judgment of forfeiture or fine levied in the
Requesting State, the treaty requires the Requested State to do
so. The article does not mandate institution of forfeiture
proceedings in either country against property identified by
the other if the relevant prosecution authorities do not deem
it proper to do so.
United States law also permits the transfer of forfeited
property or a portion of the proceeds of the sale thereof to
any foreign country which participated directly or indirectly
in the seizure or forfeiture of the property.\29\ The amount
transferred will generally reflect the contribution of the
foreign government to the law enforcement activity which led to
the seizure or forfeiture of the property under United States
law. United States sharing statutes require that the transfer
be authorized in an international agreement between the United
States and the foreign country, and be authorized by the
Attorney General or the Secretary of the Treasury and agreed to
by the Secretary of State. Article 14 is intended to authorize
and provide for the transfers of forfeited assets or the
proceeds of such assets to the other State under the new United
States law because Article 14 enables either State to transfer
forfeited assets to the extent permitted by their respective
laws.
\29\ Title 18, United States Code, Sec. 981(i)(1).
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article 15--search and seizure
It is sometimes in the interests of justice for one State
to ask another to search for, secure, and deliver articles or
objects needed in another State for use as evidence or for
other purposes. United States courts execute such requests now
under 28 U.S.C. Sec. 1782,\30\ and Article 15 of the treaty
creates a reciprocal framework for handling such a request.
\30\ See e.g., United States Ex Rel. Public Prosecutor of
Rotterdam, Netherlands v. Richard Jean Van Aalst, Case No. 84-67-Misc-
018 (M.D. Fla., Orlando Div.) cited in Ellis and Pisani, supra note 1
at page 215.
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Pursuant to Article 15(1)'s requirement that the request
include ``information justifying such action under the laws of
the Requested State,'' a request to the United States from
Panama ordinarily will have to be supported by probable cause
for the search. A United States request to Panama would have to
satisfy the corresponding evidentiary standard there. It is
contemplated that the request would be carried out in strict
accordance with the law of the country in which the search is
being conducted.
Article 15(2) is designed to insure that a record is kept
of articles seized and of articles delivered up under the
treaty. This provision effectively requires that detailed and
reliable information be kept regarding the condition of the
article and the chain of custody between the time of seizure
and the time of delivery to the Requesting State.
Article 15(2) also requires that the certificates prepared
for this purpose will be admissible without additional
authentication at trial in the Requesting State and is intended
to avoid the burden, expense, and inconvenience to the
Requested State of sending its officials to the Requesting
State to provide authentication and chain of custody testimony
each time evidence produced pursuant to this Article is used.
The treaty's injunction that the certificates be admissible
without additional authentication at trial leaves the trier of
fact free to accord the certificate only such weight as it is
due.
article 16--location and identity of persons
Article 16 provides that the Requested State is to
ascertain the whereabouts in the Requested State of persons
(such as witnesses, potential defendants, or experts) where
such information is of importance in connection with an
investigation or proceeding covered by the treaty. The treaty
requires only that the Requested State make ``best efforts'' to
locate the person sought by the Requesting State.
article 17--serving documents
Article 17 creates an obligation on the Central Authority
of the Requested State to arrange for or effect the service of
summons, complaints, subpoenas, or other legal documents at the
request of the Central Authority of the other State.
It is expected that when the United States is the Requested
State, service will be made by registered mail (in the absence
of any request by Panama to follow any specified procedure for
service) and by the United States Marshal's Service in
instances where personal service is requested.
It is anticipated that this article will facilitate service
of subpoena on United States citizens, pursuant to Title 28,
Section 1783. However, the first paragraph of the article does
not oblige the Requested State to serve any subpoena which
requires the attendance of a person in the Requested State at a
proceeding before an authority or tribunal in the Requesting
State where serving such subpoena would be impractical due to
the location of the person. Since this provision is based on
Article 17(1) of the U.S.-Bahamas Treaty, we assume that the
Panamanian authorities were concerned that their resources
would be severely taxed by efforts to effect such service at
remote locations in Panama. Therefore, we anticipate that where
service is practicable--i.e., where the person is located in a
metropolitan area--the request for service will be granted even
if the subpoena calls for attendance in the Requesting State,
just as it is under the U.S.-Bahamas Treaty.
In order to allow sufficient time for service to be
effected and for the respondent to make arrangements for his
appearance, Article 17(2) provides that where the document to
be served calls for the appearance of a person in the
Requesting State, the document ordinarily must be transmitted
by the Requesting State for the Requested State at least thirty
days before the scheduled appearance. Thus, if the United
States were to ask Panama to serve a subpoena issued pursuant
to Title 28, United States Code, Section 1783 on a United
States citizen in Panama, the request would have to be
submitted well in advance of the hearing or trial at which the
respondent is expected to appear.
Article 18--Compatibility with Other Treaties and Internal Laws
The first paragraph states that assistance procedures
provided by this Treaty shall not prevent either State from
granting assistance under any other international agreement to
which it may be a party. It also provides that the Treaty shall
not be deemed to prevent recourse to any assistance available
under the internal laws of either country. Thus, the Treaty
leaves the provisions of United States and Panamanian law on
letters rogatory completely undisturbed, and does not alter any
preexisting agreements concerning investigative assistance,
such as the Protocol Amending the Single Convention on
Narcotics Drugs, 1961, done at Geneva March 25, 1972, and
entered into force for the United States August 8, 1975 (26
U.S.T. 1439, T.I.A.S. 8118).
The second paragraph is based on Articles 3 and 4 of the
U.S.-Canada Treaty and Article 18(2) of the U.S.-Bahamas
Treaty. It provides that a State which needs assistance in a
case covered by the Treaty must make a request for that
assistance pursuant to the Treaty unless some other
international agreement or arrangement applies. The Parties
intend that the Treaty serve as the primary means by which
evidence in one country would be made available to law
enforcement authorities in the other in cases covered by the
Treaty. However, Article 18(2) does not apply to matters not
covered by the Treaty, such as cases and investigations
involving purely tax matters, and in these areas the parties
may pursue the needed evidence at any time by any legal means
available, including the unilateral use of domestic judicial
process.
Article 18(3) provides that the provisions of the Treaty do
not give rise to any right on the part of a private person to
impede execution of a request. Thus, an individual from whom
records or testimony are sought would not be free to oppose the
execution of the request by claiming that the request fails to
comply with the Treaty's formal requirements (such as those
specified in Article 5), or attempt to substitute his judgment
for that of the Central Authority in deciding whether the
substantive requirements of the Treaty (such as those in
Article 3) have been met.
Article 18(3) further provides that the Treaty is not
intended to create any right to suppress or exclude evidence
obtained thereunder. Therefore, evidence obtained under the
Treaty by one State from the other State should not be
suppressed or excluded from use in judicial proceedings on the
ground that the Requesting State's request failed to comply
with the provisions of the Treaty. This provision is intended
to avoid involving the Requesting State's courts in second-
guessing the decision of the Requested State to honor the
request in the first place.\31\ If the person can point to a
recognized basis in the ordinary law of the Requesting State
for not executing the request or for exclusion of the evidence
or for the Requesting State's courts to exclude the evidence,
that issue can be decided exactly as it would otherwise be
handled. It should be noted that this is a standard provision
in our treaties,\32\ and has limited applicability in Panama
since that country's jurisprudence does not include any
exclusionary rule.
\31\ See United States v. Caramian, 468 F.2d 1370 (5th Cir. 1972);
United States v. Marschner, 470 F. Supp. 201, 202-203 (D. Conn. 1979).
\32\ Ellis and Pisani, supra note 1, at 211-212, 221-222. See also
United States v. Johnpoll, 739 F.2d 702 (2d Cir. 1984).
article 19--improvement of assistance
The first paragraph of the article encourages both parties
to be aware of the opportunity presented by this agreement to
insuring that other aspects of our bilateral relations benefit
from the same kind of flexibility and mutual understanding that
this Treaty reflects, particularly in the area of mutual legal
assistance. For instance, it may be appropriate to consider
initiating negotiations on assistance in civil matters.
The United States experience has shown that as the parties
to a treaty of this kind work together over the years various
practical ways to make the treaty more effective become
evident. The second paragraph of the article calls upon the
States to share those ideas with one another and encourages
them to agree on the implementation of such measures. Practical
measures of this kind might include methods of keeping each
other informed of the progress of investigations and cases in
which treaty assistance was utilized and using the treaty to
obtain evidence which might otherwise be sought under other
methods which might be less acceptable in the Requested State.
Similar provisions are in the U.S.-Canada Treaty and the U.S.-
Cayman Treaty.
article 20--ratification and entry into force
The penultimate article contains standard language
concerning the procedure for exchange of the instruments of
ratification, and the coming into force of the Treaty. As noted
earlier, it is not anticipated that either Panama or the United
States will need to enact any implementing legislation in order
to bring the treaty into operation. Panama has completed its
ratification process and is in a position to exchange
instruments of ratification as soon as the United States Senate
has given advice and consent to ratification, and the President
has signed instruments of ratification for the United States.
article 21--denunciation
The final article contains the standard provision
concerning the procedure for terminating the treaty. The
requirement that either State give six months' written notice
to the other of an intent to terminate the treaty is not
unusual in a treaty of this kind, and is similar to the
requirement contained in United States mutual legal assistance
treaties with Switzerland, Turkey, the Netherlands, the
Bahamas, and Canada.
Entry Into Force
This Treaty shall enter into force upon the exchange of
instruments of ratification by the Governments of the United
States of America and the Republic of Panama.
Text of Resolution of Ratification
Resolved, (two-thirds of the Senators present concurring
therein), That the Senate advise and consent to the
ratification of the Treaty between the United States of America
and the Republic of Panama On Mutual Assistance in Criminal
Matters, With Annexes and Appendices, signed at Panama on April
11, 1991. The Senate's advice and consent is subject to the
following two provisos, which shall not be included in the
instrument of ratification to be signed by the President:
Nothing in this Treaty requires or authorizes
legislation, or other action, by the United States of
America prohibited by the Constitution of the United
States as interpreted by the United States.
Pursuant to the rights of the United States under
this Treaty to deny requests which prejudice its
essential public policy or interest, the United States
shall deny a request for assistance when the Central
Authority, after consultation with all appropriate
intelligence, anti-narcotic, and foreign policy
agencies, has specific information that a senior
government official who will have access to information
to be provided under this Treaty is engaged in or
facilitates the production or distribution of illegal
drugs.