Why it matters: A recently circulated and sure to be controversial decision by a French court of appeals raises interesting issues in connection with cross-border prosecutions. In the decision, the French appellate court ruled that an individual who had pleaded guilty to Foreign Corrupt Practices Act (FCPA) violations and entered into a plea agreement in the United States could not be prosecuted for the same offense in France. The court’s novel reasoning: Because the individual had had “no choice” but to enter into the plea agreement with U.S. authorities (under which he was obligated to plead guilty and prohibited from later denying any admissions made in the agreement), he had been deprived of his right to self-defense protected by the European Convention on Human Rights (ECHR).

Detailed discussion: On June 28, 2017, online blog FCPA Professor posted a missive from Paris-based attorney Frederick Davis reporting on a decision by a French court of appeals (from September 2016 but only recently circulated) that adds another wrinkle to the ongoing issues surrounding cross-border prosecutions, at least between the United States and France.

The French appellate court ruled that an individual who had pleaded guilty to FCPA violations and entered into a plea agreement in the United States could not be prosecuted for the same offense in France. The court’s reasoning: Because the individual had had “no choice” but to enter into the plea agreement with U.S. authorities (under which he was obligated to plead guilty and prohibited from later denying any admissions made in the agreement), he had been deprived of his right to self-defense protected by the ECHR.

The case involved former U.K. solicitor Jeffrey Tesler, who in March 2011 had entered into a written plea agreement with the U.S. Department of Justice in which he agreed to plead guilty to FCPA violations. A Southern District of Texas court formally accepted the plea agreement in February 2012, at which point a judgment of conviction was entered against Tesler. At roughly the same time overseas, following a lengthy investigation in France by an investigating magistrate, Tesler was ordered to stand trial in November 2010 for alleged criminal violations of the French anti-bribery statute based largely on the same facts underlying the U.S. investigation.

In a decision handed down in September 2016 but circulated only recently, the French appellate court ruled that Tesler could not be prosecuted in France because (as translated from French) “[Tesler’s guilty plea] prohibited him from contradicting his acknowledgment 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.” As Davis put it, the court’s “key reasoning was that by pleading guilty in the U.S., Tesler put himself under an obligation not to contradict any of the factual or legal representations he had made there, and therefore was powerless to defend himself in French court without fear of violating his plea agreement and incurring the wrath of U.S. prosecutors.”

To underscore this point, the court continued (again, translated from French), “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.”

According to Davis, the court’s decision in the Tesler case was based on a “clearly animated” belief that U.S. criminal procedures “lack fairness” in contravention of the ECHR. Davis also noted that in 2015 another French court came to the same conclusion (i.e., no French prosecution after U.S. guilty plea) on different grounds based on the International Covenant on Civil and Political Rights, which decision is still being appealed to “uncertain outcome.” In addition to creating uncertainty in cross-border investigations, at least between the United States and France, Davis said that the “perverse effect” of these French cases “may be to encourage recourse to U.S. negotiated outcomes for the simple reason that its ruling means that a U.S. plea precludes prosecution in France, while the same would clearly not be the case were the situation reversed.”

Davis continued, “The notion that a carefully negotiated guilty plea by a wealthy defendant advised by experienced counsel, and apparently in strict compliance with U.S. procedures, is nonetheless ‘involuntary’ will appear preposterous to U.S. lawyers and prosecutors; on its face, the court’s ruling would undermine the validity of virtually any U.S. guilty plea. … It is the opinion of the author, however, that the perception is already widespread in Europe that U.S. prosecutors exercise far too much power with far too little judicial supervision, a point of view that this decision will encourage.”

Davis concluded with a discussion of the “right of self-defense” that French courts appear to believe is undercut by a U.S. guilty plea:

“[I]n France (and elsewhere in continental Europe) the right of self defense implies a right to some testimonial flexibility. Generally speaking, criminal defendants are encouraged to speak on their own behalf (among other reasons, because a strong inference of guilt may often be drawn from their failure to do so), but they are not put under oath. The reason for this is 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. This has led to the concept—which does not appear in any text, but is openly discussed in France—of a so-called ‘right to lie.’ Even before this decision, there has been frequent anecdotal comment, and one published article, criticizing provisions in many U.S. Deferred Prosecution and Non-Prosecution Agreements where a defendant formally agrees not to contradict elsewhere anything said in the agreement. This provision is clearly intended by U.S. prosecutors to avoid the public relations fiasco of a defendant insisting on innocence even after expressing contrition in a formal agreement, but in France is disparagingly called a “muzzle clause,” and is widely viewed as a pernicious example of the extraterritorial reach of U.S. criminal procedures.”