GAB is pleased to welcome back Frederick Davis, a lawyer in the Paris office of Debevoise & Plimpton, who contributes the following guest post:

Overseas bribery and similar crimes can often be investigated by prosecutors in more than one country. But does (or should) the resolution of a criminal investigation in one country—say, through a negotiated resolution—bar subsequent prosecutions in other countries for the same underlying conduct? In earlier posts, I have explored some recent rulings that address aspects of this debate over so-called “international double jeopardy” (see here, here and here). A recent decision of the Paris Court of Appeals added an interesting new element to this debate. Faced with a classic situation of parallel prosecutions, the Paris Court held that an individual who had pleaded guilty in the United States for violations of the U.S. Foreign Corrupt Practices Act (FCPA) could not be prosecuted under French anti-bribery law—not because of the standard international double jeopardy principle, but rather because, according to the Paris Court, the US proceedings deprived the defendant of the right to defend himself protected by the European Convention on Human Rights (ECHR).

The facts of the case are simple: an individual entered into a written plea agreement with the U.S. Department of Justice (DOJ), in which the defendant agreed to plead guilty in a US court to FCPA charges, on which he was subsequently sentenced. He was separately bound over for trial in France under French anti-bribery laws, apparently for the same underlying conduct.  In affirming the dismissal of the French prosecution, the Paris Appellate Court’s reasoning proceeded in two steps:

First, the court concluded that by pleading guilty in the US, the defendant put himself under an obligation not to contradict any of the factual or legal representations he had made in that plea. Thus, the court reasoned, the defendant was powerless to defend himself in France without fear of violating his U.S. plea agreement. In the words of the appellate court (my translation):

[The U.S. guilty plea] prohibited [the defendant] from contradicting his acknowledgement of guilt for fear that the U.S. authorities would walk away from their agreement and reopen the prosecution against him, thus depriving him of his ability to insist on his innocence without abandoning his right against self-incrimination or his right of self-defense.

Second, the Paris Appellate Court concluded that the defendant’s U.S. guilty plea had not been voluntary. In doing so, the court did not apply the same standard that a U.S. court would have applied in determining whether a plea was coerced. Rather, the Paris court embraced a broad understanding of involuntariness that would seem to render virtually any plea bargain with the U.S. government “involuntary”:

It is difficult to conclude that this situation resulted from a considered and personal decision by the accused (even if surrounded by lawyers) when faced with American judicial authorities armed with such powers and capable of proceeding against him to obtain particularly lengthy sentences (several decades) if he refused to plead guilty.

Putting these two arguments together, the Paris Appellate Court determined that, in reaching a plea bargain with the DOJ, the defendant had been coerced into forfeiting his ability to deny the facts supporting the bribery allegations against him in the French proceeding. This, the Court concluded, violated the defendant’s right to self-defense protected by Article 6 of the ECHR.

To an American lawyer, both pieces of the Paris Court’s argument may seem strange, even preposterous:

• First, consider the idea that there is something problematic about prohibiting from a defendant from denying in one forum what he has already admitted in another forum. To an American, it is simply common sense that a defendant might face problems when taking inconsistent positions in different courts on the same charges. And indeed, most negotiated resolutions of criminal cases – including Deferred Prosecution and Non-Prosecution Agreements – include a commitment by the defendant not to contradict in any other place or court anything said in in the agreement. Such a provision is clearly intended by US prosecutors to avoid the public relations fiasco of a defendant publicly insisting on innocence even after expressing contrition in a formal agreement, but in France such provisions—disparagingly referred to as “muzzle clauses”—have been criticized as a pernicious example of the extraterritorial reach of U.S. criminal procedures. Moreover, in France (and elsewhere in continental Europe), this approach may run afoul of what has regularly, but not entirely accurately, been called a “right to lie.” European criminal defendants are encouraged to speak on their own behalf at trial (among other reasons, because an inference may often be drawn from their failure to do so), but they are not put under oath. This is based on a widespread belief that it is unfair to force on a defendant the stark choice between insisting on silence (and leaving the prosecutor’s case unrebutted) and risking a perjury prosecution at the hands of the same prosecutor.
• Second, the notion that a carefully negotiated guilty plea is “involuntary” even when done by a wealthy defendant advised by experienced counsel, and apparently in strict compliance with US procedures, will appear bizarre to US lawyers and prosecutors.  But the view is already widespread in Europe that US prosecutors exercise far too much power with far too little judicial supervision, a perception certainly bolstered by this decision. This perception could lead to tensions among US and European prosecutors engaged in cooperative efforts.

Whether this recent decision is an anomaly or a bellwether remains to be seen. Putting aside for the moment its legal merits, it’s perhaps worth noting one likely (and almost certainly unintended) consequence of the Paris Court’s decision: While the Paris Court was clearly animated by a belief that U.S. criminal procedures are unfair, the main effect of its ruling may be to encourage recourse to U.S. negotiated outcomes. After all, though under the court’s reasoning a U.S. plea bargain would prelude prosecution in France, the same would clearly not be the case were the situation reversed. In this, the decision is functionally equivalent to at least one earlier French ruling, summarized in my blog posts noted above, that a U.S. resolution bars French proceedings under the international double jeopardy (or, as known in Europe, ne bis in idem) provisions of the International Covenant on Civil and Political Rights (ICCPR). (While the US signed the ICCPR, its courts interpret it not to establish individual rights and will not view it as a bar to U.S. prosecution after a non-U.S. outcome.) Thus the French judiciary’s efforts to limit the ability for the French government to prosecute bribery defendants who have already settled with the U.S. government will likely perpetuate the U.S. DOJ’s dominant role in transnational anti-bribery enforcement, while at the same time creating a new source for irritation between prosecuting offices that should be cooperating.