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      Proskauer on International Litigation and Arbitration:
       Managing, Resolving, and Avoiding Cross-Border Business or Regulatory Disputes
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  1. Fifth Amendment Rights of Resident and Non-Resident Aliens
    1. Resident Aliens. A resident alien enjoys the rights guaranteed by the Fifth Amendment that would be afforded any citizen and a resident alien may invoke these rights in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory. Among the rights bestowed under the Fifth Amendment is the right to refuse to give any disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.” United States. v. Balsys, 524 U.S. 666 (1998); Kastigar v. United States, 406 U.S. 441, 444-45 (1972) Kwong Hat Chew v. Colding 344 U.S. 590 (1953).
    2. Non-resident aliens questioned in advance of criminal proceedings in the United States: The Federal Court for the Southern District of New York has held that statements given abroad to United States law enforcement personnel were inadmissible during a later criminal trial conducted in the United States. U.S. v. Bin Laden, 132 F. Supp. 2d 168, 181 (S.D.N.Y. 2001).
    3. Non-resident aliens appearing in a civil action in United States Courts: So far, courts have interpreted the Bin Laden decision narrowly, choosing not to extend its protections to non-resident aliens in civil cases. For example, in Bear Stearns & Co. v. Wyler, 182 F. Supp. 2d 679 (N.D. Ill. 2002). The court allowed a subpoena to stand served upon a Dutch businessman that subpoenaed the bank, wire transfer and phone records. In dictum, the court examined the businessman’s purported Fifth Amendment rights as a citizen and resident of the Netherlands and while deciding the issue on other grounds noted that it “was not self-evident that the Fifth Amendment’s privilege against self-incrimination is available to non-resident aliens.” Wyler, 182 F. Supp. 2d at 680-81.
    4. The Supreme Court has been restrictive in interpreting the language “any criminal case” to extend exclusively to proceedings that would be brought under United States Federal or State criminal statutes.
      1. In United States v. Balsys, the Supreme Court held that the Fifth Amendment’s protections for aliens cannot be invoked where the fear is of foreign prosecution. The Supreme Court determined that fear of foreign prosecution in Lithuania and Israel did not, in fact, constitute a “criminal case” from which the defendant could protect himself by asserting the privilege. 524 U.S. at 672. The Balsys case involved a subpoena issued by the Office of Special Investigations to a Lithuanian-born resident alien. The Second Circuit, however, had followed the lead of the Fourth Circuit. Reversing, the Supreme Court concluded that the phrase "any criminal proceeding" in the compelled self-incriminated clause, when read in context, "provid[es] a witness with the right against compelled self-incrimination when reasonably fearing prosecution by the government whose power the Clause limits, but not otherwise." Thus, any witness who fears prosecution by a foreign government will nonetheless have to testify if the witness is granted immunity from prosecution in the United States.
      2. Noteworthy in the Balsys decision, however, was dictum suggesting that there might be situations in which “cooperative conduct between the United States and foreign nations could develop to a point at which a claim could be made for recognizing fear of prosecution.” Should that occur, an argument could be made that the Fifth Amendment should apply based on fear of foreign prosecutions because that prosecution was not fairly characterized as distinctly ‘foreign.’ 524 U.S. at 698.
  2. Sixth Amendment Rights in Criminal and Civil Cases
    1. The Sixth Amendment to the U.S. Constitution guarantees that every person charged with a crime shall have compulsory process for obtaining witnesses in his favor. U.S. Const. Amend. VI. But that right does not ordinarily extend beyond U.S. boundaries.
    2. The U.S. government generally has no power to compel the presence of a foreign national residing outside the United States so that a Sixth Amendment violation cannot rest on the failure to issue a subpoena. U.S. v. Theresius Filippi, 918 F.2d 244 (1st Cir. 1990).
    3. In a civil case, bank records of Israeli defendant held in Israel obtained by request under Treaty of Mutual Legal Assistance in Criminal Matters were properly accepted into evidence under 18 U.S.C § 3505, based on certificates of authenticity. The court held that admission of such documents did not violate right of confrontation under Crawford v. Washington, 541 U.S. 36 (2004) which held that testimonial statements may only be admitted in instances in which the declarant is unavailable, and the defendant has previously had the opportunity to cross-examine the declarants. The Ninth Circuit in Hagege held that business records were non-testimonial evidence that “are not subject to the absolute requirement of confrontation established in Crawford. See United States v. Hagege, 437 F.3d 943, 957 (9th Cir.), cert. denied, 127 S. Ct. 85 (2006).

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