United States v. Allen
Citation: 864 F.3d 63 (2d Cir. 2017)
Facts
Allen and Conti, traders in the LIBOR manipulation investigation, gave compelled testimony to the UK Financial Conduct Authority (FCA) under a UK immunity equivalent. US prosecutors subsequently used transcripts of that testimony in their prosecution, arguing the US had not granted immunity.
Issue
Does the Fifth Amendment’s use-and-derivative-use immunity under Kastigar v. United States extend to compelled testimony given under foreign immunity agreements?
Holding
Yes. The Second Circuit held that the government violated the defendants’ Fifth Amendment rights by using testimony compelled under a foreign immunity regime to build a U.S. prosecution. Once testimony is compelled under immunity abroad, using it against the defendant in a U.S. prosecution violates the Self-Incrimination Clause.
Rule
Fifth Amendment and foreign compelled testimony: The Self-Incrimination Clause protects against use of testimony that was compelled — even if compelled by foreign authorities — in subsequent U.S. criminal proceedings. The government may not use compelled testimony (or its fruits) without independent sources wholly free of the compelled testimony.
Significance
- Significant Second Circuit decision on compelled testimony in cross-border investigations
- Prosecutions were ultimately dismissed because the government could not make the required Kastigar showing of independent sources
- Raised issues about international enforcement cooperation and the risk of “laundering” compelled testimony through foreign investigations
- Note: reversed in part on other grounds; the self-incrimination holding remains influential