STEP 1. Determine what is needed (e.g., present or confiscate financial or business records, search a site, confiscate, hold or confiscate property). It`s often better to use a step-by-step approach to requesting MLA rather than asking for everything at once. Many jurisdictions require proof of dual criminality, which means that the conduct underlying the request for assistance is criminalized in both jurisdictions. Different jurisdictions treat this requirement in different ways, but more often than not, jurisdictions apply a conduct-based approach (i.e., they examine the underlying conduct behind the terminology and require that the conduct be a criminal offense under the laws of both jurisdictions). In any case, the use of informal assistance is of the utmost importance to discuss, identify and (if possible) overcome possible obstacles that may constitute the requirement of dual criminality. The behavior-based approach can be useful in corruption cases, as some of the most specific crimes are not criminalized in all jurisdictions, such as illicit enrichment, bribery of foreign officials, tax evasion, or prolonged confiscation. It will be important to describe the offences and not just list them, as the requested court may not have the relevant expertise of the legal system of the requesting country and may need to assess whether the conduct is punishable under its domestic law under a different name. The Program Management and Training Unit is responsible for several national enforcement initiatives, working groups and programs, including the transfer of lapsed funds to victims of crime, the Fair Sharing Program and real property transfers. Each of these programs involves the transfer of hundreds of millions of dollars to victims, as well as state and local law enforcement agencies, and requires nationally consistent policies and monitoring to ensure that confiscated products are distributed in accordance with the laws, regulations, and policies that govern them.
The unit is also responsible for overseeing and providing national training to all federal prosecutors, agents, analysts and auxiliaries regarding asset forfeiture, money laundering and financial investigations, including the development of curricula, training tools and training materials. In addition, the Unit is responsible for asset forfeiture and reporting on money-laundering, including the preparation and publication of all publications on asset forfeiture and money-laundering. This is particularly important in cases where the procedure can be concluded by other means of asset recovery that may not require a criminal conviction – a solution that courts have increasingly turned to in recent years. These alternative avenues may include, for example, negotiated agreements such as settlements, plea negotiations or deferred prosecution agreements (DPA) and ncBF (Conviction-Based Forfeiture) procedures. The use of these alternative channels often involves the negotiation of confidential agreements with suspects that involve the confiscation of assets in exchange for an asset-sharing agreement or the interruption of criminal proceedings and the (non-)recognition of guilt. However, the interruption of such criminal proceedings in one jurisdiction may make it very difficult for another jurisdiction concerned to make even related efforts to recover assets. A negotiated solution in one jurisdiction may affect that court`s ability to provide legal assistance in that case or to provide information or evidence to another jurisdiction. In order to make a Request from a Member, there must be a legal basis for cooperation; and this must be indicated in the application. This legal basis may be indicated in (1) multilateral conventions, treaties or agreements containing provisions relating to the AMLA in criminal matters; (2) bilateral treaties and agreements relating to the AMLA; (3) national legislation permitting international cooperation in criminal matters; or (4) a promise of reciprocity through diplomatic channels (referred to in some jurisdictions as a request for mutual legal assistance or “courtesy”). It should be noted that the absence of a mutual legal assistance agreement or relevant law can significantly complicate the proceedings and hinder the successful conclusion of a case. When choosing the legal basis to include in an MLA application, many practitioners have found it very useful to list any relevant contracts, agreements or laws that apply in order of preference. This practice increases the possibility of applicability: since the types of support and possible reasons for rejection vary from one contract to another, the request may be acceptable on one legal basis and not on another.
The list should be in order of preference. A bilateral treaty is generally a good option if the treaty properly implements the main principles of important multilateral treaties such as the UNCAC. Bilateral treaties are tailored to the legal traditions and options of both parties (as opposed to the “one size fits all” approach of multilateral treaties. The relevant treaties, which are followed by all national legislation, generally allow for faster cooperation than a promise of reciprocity and a request for mutual legal assistance. It deals with non-conviction-based confiscation as a method of recovering assets stolen by corruption and how the challenges of international cooperation can and should be overcome in such cases. The Department of Money Laundering and Asset Recovery (MLARS) leads the Ministry`s efforts to enforce asset forfeiture and combat money laundering. MLARS takes the lead in: (1) prosecuting and coordinating complex, sensitive, cross-district and international investigations and cases of money laundering and asset forfeiture; (2) Provide legal and policy support and training to federal, state and local prosecutors and law enforcement officials, as well as foreign governments; 3) support departmental and inter-jurisdictional decision-makers in the development and review of legislative, regulatory and policy initiatives; and (4) administering the Department`s asset forfeiture program, including the distribution of expired funds and real property to appropriate domestic and foreign law enforcement agencies and community groups in the United States, and adjudicating requests for the surrender or mitigation of expired assets. To this end, MLARS consists of seven units and associated teams.
The International Unit consists of two teams. The International Assistance Team assists U.S. prosecutors in the detention and confiscation of assets located abroad, trials in the United States.