Enhancing the Investigation
and Prosecution ofCorruption Cases
Kenneth C. Kohl
Resident Legal Advisor
United States Embassy – Kuala Lumpur

7th Regional Seminar on Good Governance (UNAFEI and MACC)
Malaysia Anti-Corruption Academy, 3-5 December 2013

- 37 -

Building blocks of a successful
anti-corruption prosecution
Need the kind of persuasive evidence that results from
intelligence led proactive policing
 Robust use of income & asset declarations
 Rigorous integrity and accountability mechanisms
 Cultivating cooperation from private sector
 Protection of informant witnesses Tracking and recovery of ill-gotten assets
 Penetration of safe-havens
 Independent judiciary / adherence to rule of law
Common causes of unsuccessful
corruption prosecutions
 Lack of prosecutorial independence
 Failure to cultivate “insider” witnesses Failure to anticipate defenses andadequately corroborate the case
 Failure to adhere to high ethical standards- 38 -

#1. Lack of Prosecutorial
Independence

Prosecutorial Independence- 39 -

Prosecutorial Independence

Bottom up rather than top down
Decisions to open an investigation andrecommend charges are made by linelevel, career prosecutors



US DOJ Public Integrity Section
UNCAC Article 26 encourages“Specialized Authorities” in combating
corruption through law enforcement.

Recusal & highly sensitive cases
 Statutory accountability


Required to submit annual report to US
Congress (pursuant to Ethics inGovernment Act of 1978)

Public criticism comes withthe territory“[A]fter more than two
decades of bipartisan andbusiness support, the US
Chamber of Commerce haslaunched an effort to weaken
the Foreign Corrupt Practices
Act”
6 September 2012- 40 -

Public criticism comes withthe territory“We have to be willing totake cases that we would
be willing to lose,” AssistantAttorney General Lanny
Breuer said in an interview.
“We can’t just pick the easycases.”

2. Failure to cultivate insider
witnesses
 Whistleblowers
 Outraged competitor
 Agent provocateurs /undercover officers
 Accomplice witnesses- 41 -

Cultivating insider witnesses2009 study on impact ofaccomplice-witnessleniency program adopted
in Italy in 1991
“The analysis robustly
shows that the introductionof a leniency program
stifles both the crime andthe corruption rates . . .”Cooperation Plea Agreements:
An Essential Tool“[W]itness inducement agreements have been an integral partof the American criminal justice system since its inception.
American jurisprudence has adopted and expanded the practicebeyond its common-law ancestors, and has developed
procedural safeguards to insure that criminal verdicts in trials
involving witness inducement agreements are based uponreliable evidence. Witness inducement agreements willcontinue to be an important tool to prosecutors in the twentyfirst century.”WHY PROSECUTORS ARE PERMITTED TO OFFER WITNESSINDUCEMENTS: A MATTER OF CONSTITUTIONAL AUTHORITY
Hon. H. Lloyd King, Jr., 156 Stetson Law Review [Vol. XXIX] 1999

- 42 -Cooperation Plea Agreements:
International Consensus
RECOMMENDATION:“13. Mitigation of punishment andgrants of immunity from prosecution
encourage accomplices and “insiders”
to supply useful information andtestimony. Providing for the possibility,
in appropriate cases, of mitigating
punishment or granting immunity topersons who provide substantial
cooperation in the investigation andprosecution of criminal offences should
be duly considered.”

Cooperation Plea Agreements:
International Consensus
United Nations
Convention
AgainstCorruption(UNCAC)
Signatories: 140
States Parties: 162- 43 -Cooperation Plea Agreements:
International Consensus“Each State Party shall consider
providing for the possibility, inappropriate cases, of mitigating
punishment of an accused person
who provides substantial
cooperation in the investigation orprosecution of an offence coveredby this Convention.”

United Nations
Convention
AgainstCorruption(UNCAC)
Signatories: 147
States Parties: 172

Cooperation Plea Agreements(US Practice and Procedure)
1. Identify potential cooperator
2. Prosecutor/officer does an “off the record” interview of witness
3. Negotiate terms of written plea agreement
4. Plea hearing before judge (usually closed proceeding)
5. Prosecutor meets with cooperator to prepare for trial
6. Witness testifies at trial of former codefendant
7. Witness is sentenced- 44 -Reducing Cooperation Plea
Agreement to Writing Transparency is key:

Every promise must be

reduced to writing
 Government obligations and accused’s obligations
 Generally charge bargain, not sentence bargain– Best option: accused pleads to all charges, gets hope of
reduced sentence– More charges in plea = more credibility as witness
 Consider a written factual proffer for judge
 Include disclaimer that proffer is under inclusive

Reducing Cooperation Plea
Agreement to Writing Accused agrees to testify truthfully and completely
 Accused agrees to turn over documents, materials
 Accused agrees to defer sentencing until hiscooperation is completed
 Accused agrees to submit to polygraph Accused agrees to waive rights to appeal
 Consequences of breach spelled out– False statement will result in cancellation of his plea,
and he may be charged w/ perjury, obstruction– Accused’s statements can be use against him- 45 -

Reducing Cooperation Plea
Agreement to Writing agreement should ideally include all of accused

criminal conduct– increases leverage if cooperation not fruitful– enhances credibility as a witness
 detention status should be explicit– release based solely on potential operational
cooperation, and bond revoked if agreement breachedor accused commits new crime government obligation to provide witness security– articulate justification / nature of the threat

Preparation of Cooperator
Witness Before Trial
 Prosecutor has a “duty to truth” and an

obligation to do justice, and must satisfy himselfthat the witness he is sponsoring is truthful andcredible, and will not mislead the Court If for no other reason, DPP’s have a duty tointerview witnesses of dubious credibility tosatisfy his /her obligation to disclose
exculpatory information under CPC Rule 51- 46 -Preparation of Cooperator
Witness Before Trial Specific direction to witness– “Tell the truth, tell the truth, tell the truth”– Witness not an advocate for either side
 Prosecutor explains courtroom procedures, andwhat questions to expect from prosecutor anddefense attorney– Okay to do mock direct, cross-examination
 Never give witness a script, or coach a witness,or suggest answers

3. Insufficient corroborative
evidence
Accomplice testimony cannever stand alone Corroborating innocent
details of witness testimony
 Overreliance on audio orvideotape
 Sting operations raise
additional proof issues
 Prosecutors: know yourevidence- 47 -

4. Adherence to high ethicalstandards
 Don’t allow politicalpartisanship to creep in Transparency incharging decisions
 Procedures fordisclosure ofexculpatory evidence

Discovery Obligations
 Discovery requirement to disclose all “benefitsconferred.”– plea agreement– other promises and considerations– witness security payments
 Obligation to produce “material, exculpatory”

information– prior inconsistent statements– contradictions with other witnesses- 48 -Voluntary Self-DisclosureClarifying incentives
from voluntary
disclosure and a strong
compliance program
Use of Non-Prosecution
Agreements (NPAs) andDeferred Prosecution
Agreements (DPAs)

Questions?
Kenneth C. Kohl
Resident Legal Advisor
United States Embassy – Kuala Lumpur(012) 787-3658 (H/P)
ken.kohl@usdoj.gov- 49 -