Millions in complex assets mishandled or lost while under US Marshals Service care

From the International Association for Asset Recovery:

A new audit report from the Department of Justice Inspector General largely supports allegations made by a contract forfeiture support whistle-blower, detailing wasteful procedures and undervaluation of complex assets.

The Justice Department’s top internal investigator released a scathing audit report last Tuesday confirming many of the allegations made by a former government contractor who accused the US Marshals Service, its director and his employer of improprieties 10 months ago. The report, from the Office of the Inspector General, not only calls into question the leadership and oversight of the Marshals’ Complex Assets Group from 2005 to 2009, it also portrays an asset management strategy that allowed the unit to mishandle, undervalue and ultimately lose millions of dollars that might have gone to restitution for victims of financial crimes.

The report exonerates former Complex Assets Group leader Leonard Briskman of wrongdoing, while exposing significant deficiencies in asset management practices during his tenure. His group, operating under the service’s Asset Forfeiture Program and forfeiture director Eben Morales, handles intricate, high-dollar assets such as financial instruments or interests in partnership businesses. The value of these complex assets, according to the report, ranges from $1 million to $49 million. The OIG found that the group disposed of $136 million between 2005 and 2010.

Whistleblower’s lawsuit sparked investigation

Briskman brought to the position a wealth of experience in managing retail and other properties in the private sector. But in 2009, Brian Aryai, a certified public accountant working for the largest government forfeiture contractor, Forfeiture Support Associates (FSA), began to notice irregularities in the valuation of assets handled by the Complex Assets Group. In a federal court complaint filed in November 2010, Aryai claims some assets were sold for significantly less than they were worth, often to buyers who got the inside track on the sales, which were not opened to public auction. Audit trails, he alleged, were nonexistent or obscured.

Briskman, Aryai suggested, was operating a fiefdom in which he was the ultimate arbiter of the value and the seller of these instruments, and no one else in the Marshals’ Asset Forfeiture Division was overseeing his activities.  

While other employees of the service were in no position to question Briskman’s expertise – according to the audit, Morales says his staff was not well versed in these types of assets – Aryai was better qualified to render judgment. A longtime US Treasury agent and fraud examiner, Aryai has worked in complex financial fraud and assets investigations throughout his career. The undervaluation of assets was immediately apparent to him, he claims.

In his 2010 complaint, filed in the Southern District of New York, Aryai says Briskman’s decisions “were not supported by a process whereby independent valuations were secured” to ensure a better sale price. Briskman, Aryai claims, would place low values on items and then negotiate with buyers – who were often his personal contacts – to sell the items without public notice.

Aryai says he approached his bosses at the contractor, FSA, about what he discovered. But during the March 2010 disposition of a minority interest in the so-called Delta Fund – another asset Aryai says he found to be vastly undervalued and undersold by Briskman – Aryai received an e-mail from his FSA supervisor, Yolanda Lopez.

“Brian. Be careful,” the e-mail said. “Len is the Senior USMS for Business and Complex assets. We are contractors and must cover for him, present a united front. US Attorneys should not get the impression that we are in differing levels.”

But that is exactly what did happen. From the Inspector General’s report:

“According to the AUSA [Assistant U.S. Attorney] who is working on the Madoff case, the Complex Asset Team’s lack of transparent disposition procedures in part undermined her confidence in the Complex Asset Team’s ability to manage and dispose of complex assets effectively.”

Further investigation led Aryai to suspect that Briskman was operating his own private assets valuation firm, Asset Valuation Advisors LLC. On various websites, AVA claimed to be working assets valuation cases that were actually Marshals Service forfeiture matters – an ethical grey area for professionals in the public sector. According to a cached historical page stored on the American Society of Appraisers website, Briskman as recently as 2009 listed AVA as his employer. Tax documents filed with the state of Maryland show that AVA shares a Rockville, Md., address with Briskman. In several professional associations and on other private websites, Briskman did not disclose his work for the Marshals Service.

Briskman cleared of wrongdoing, but his unit’s practices ripped

While Tuesday’s report does not explicitly credit Aryai, it was he who got the ball rolling. Before litigating, he took his concerns to Barbara Ward, an assistant US attorney for the Southern District of New York, who the report says alerted the Inspector General to the problems.

The resulting investigation found Briskman had not used his position to funnel business to his private business, but Aryai claims otherwise. His complaint describes Briskman’s LinkedIn profile, which he says describes disposed assets credited to AVA’s efforts but were remarkably similar to assets handled by the Marshals Complex Assets Group.

Briskman has since been reassigned. Reached by e-mail on Wednesday, he said he could not comment on the report. [In the interest of full disclosure, Briskman is an IAAR member, and FSA is a frequent sponsor of IAAR events.]

“This report … fully validates the legitimate concerns [Aryai] had with the manner and means in which Leonard Briskman operated and controlled the Complex Assets Group,” said Joshua L. Weiner, Aryai’s attorney. His whistleblower case is currently before the Southern District of New York.

Full article can be found here.

Making Yourself Indispensable

From the Harvard Business Review by John H. Zenger, Joseph R. Folkman, and Scott K. Edinger

A manager we’ll call Tom was a midlevel sales executive at a Fortune 500 company. After a dozen or so years there, he was thriving—he made his numbers, he was well liked, he got consistently positive reviews. He applied for a promotion that would put him in charge of a high-profile worldwide product-alignment initiative, confident that he was the top candidate and that this was the logical next move for him, a seemingly perfect fit for his skills and ambitions. His track record was solid. He’d made no stupid mistakes or career-limiting moves, and he’d had no run-ins with upper management. He was stunned, then, when a colleague with less experience got the job. What was the matter?

As far as Tom could tell, nothing. Everyone was happy with his work, his manager assured him, and a recent 360-degree assessment confirmed her view. Tom was at or above the norm in every area, strong not only in delivering results but also in problem solving, strategic thinking, and inspiring others to top performance. “No need to reinvent yourself,” she said. “Just keep doing what you’re doing. Go with your strengths.”

But how? Tom was at a loss. Should he think more strategically? Become even more inspiring? Practice problem solving more intently?

It’s pretty easy and straightforward to improve on a weakness; you can get steady, measurable results through linear development—that is, by learning and practicing basic techniques. But the data from our decades of work with tens of thousands of executives all over the world has shown us that developing strengths is very different. Doing more of what you already do well yields only incremental improvement. To get appreciably better at it, you have to work on complementary skills—what we call nonlinear development. This has long been familiar to athletes as cross-training. A novice runner, for example, benefits from doing stretching exercises and running a few times a week, gradually increasing mileage to build up endurance and muscle memory. But an experienced marathoner won’t get significantly faster merely by running ever longer distances. To reach the next level, he needs to supplement that regimen by building up complementary skills through weight training, swimming, bicycling, interval training, yoga, and the like.

So it is with leadership competencies. To move from good to much better, you need to engage in the business equivalent of cross-training. If you’re technically adept, for instance, delving even more deeply into technical manuals won’t get you nearly as far as honing a complementary skill such as communication, which will make your expertise more apparent and accessible to your coworkers.

In this article we provide a simple guide to becoming a far more effective leader. We will see how Tom identified his strengths, decided which one to focus on and which complementary skill to develop, and what the results were. The process is straightforward, but complements are not always obvious. So first we’ll take a closer look at the leadership equivalent of cross-training.

The Interaction Effect

In cross-training, the combination of two activities produces an improvement—an interaction effect—substantially greater than either one can produce on its own. There’s nothing mysterious here. Combining diet with exercise, for example, has long been known to be substantially more effective in losing weight than either diet or exercise alone.

In our previous research we found 16 differentiating leadership competencies that correlate strongly with positive business outcomes such as increased profitability, employee engagement, revenue, and customer satisfaction. Among those 16, we wondered, could we find pairs that would produce significant interaction effects?

Full article can be found here.  

Little Red Rules App

Congratulations to the design team behind the Little Red Rules App Evidence Quick Reference App now available on the I-Tunes Store. The minds from the Federal Defenders of Eastern Washington and Idaho are pleased to announce the new app that contains the Federal Rules of Evidence, Drug Quantity and Sentencing Charts, select US Constitution Amendments, and selected annotations to case law. A handy reference tool for court, the jail, and where ever you may find yourself asking, "Is this hearsay?". Available for both I-Phone and I-Pad, stay tuned for Droid App.

Colin Powell: A Leadership Primer

LESSON ONE

"Being responsible sometimes means pissing people off."

Good leadership involves responsibility to the welfare of the group, which means that some people will get angry at your actions and decisions. It's inevitable if you're honourable. Trying to get everyone to like you is a sign of mediocrity: You'll avoid the tough decisions, you'll avoid confronting the people who need to be confronted, and you'll avoid offering differential rewards based on differential performance because some people might get upset. Ironically, by procrastinating on the difficult choices, by trying not to get anyone mad, and by treating everyone equally "nicely" regardless of their contributions, you'll simply ensure that the only people you'll wind up angering are the most creative and productive people in the organization.

LESSON TWO

"The day soldiers stop bringing you their problems is the day you have stopped leading them. They have either lost confidence that you can help them or concluded that you do not care. Either case is a failure of leadership."

If this were a litmus test, the majority of CEOs would fail. One, they build so many barriers to upward communication that the very idea of someone lower in the hierarchy looking up to the leader for help is ludicrous. Two, the corporate culture they foster often defines asking for help as weakness or failure, so people cover up their gaps, and the organization suffers accordingly. Real leaders make themselves accessible and available. They show concern for the efforts and challenges faced by underlings—even as they demand high standards. Accordingly, they are more likely to create an environment where problem analysis replaces blame.

LESSON THREE

"Don't be buffaloed by experts and elites. Experts often possess more data than judgment. Elites can become so inbred that they produce hemophiliacs who bleed to death as soon as they are nicked by the real world."

Small companies and start-ups don't have the time for analytically detached experts. They don't have the money to subsidize lofty elite, either. The president answers the phone and drives the truck when necessary; everyone on the payroll visibly produces and contributes to bottom-line results or they're history. But as companies get bigger, they often forget who "brung them to the dance": things like all-hands involvement, egalitarianism, informality, market intimacy, daring, risk, speed, agility. Policies that emanate from ivory towers often have an adverse impact on the people out in the field who are fighting the wars or bringing in the revenues. Real leaders are vigilant—and combative—in the face of these trends.

LESSON FOUR

"Don't be afraid to challenge the pros, even in their own backyard."

Learn from the pros, observe them, seek them out as mentors and partners. But remember that even the pros may have leveled out in terms of their learning and skills. Sometimes even the pros can become complacent and lazy. Leadership does not emerge from blind obedience to anyone. Xerox's Barry Rand was right on target when he warned his people that if you have a yes-man working for you, one of you is redundant. Good leadership encourages everyone's evolution.

LESSON FIVE

"Never neglect details. When everyone's mind is dulled or distracted the leader must be doubly vigilant."

Strategy equals execution. All the great ideas and visions in the world are worthless if they can't be implemented rapidly and efficiently. Good leaders delegate and empower others liberally, but they pay attention to details, every day. (Think about supreme athletic coaches like Jimmy Johnson, Pat Riley and Tony La Russa). Bad ones—even those who fancy themselves as progressive "visionaries"—think they're somehow "above" operational details. Paradoxically, good leaders understand something else: An obsessive routine in carrying out the details begets conformity and complacency, which in turn dulls everyone's mind. That is why even as they pay attention to details, they continually encourage people to challenge the process. They implicitly understand the sentiment of CEO-leaders like Quad/Graphic's Harry Quadracchi, Oticon's Lars Kolind and the late Bill McGowan of MCI, who all independently asserted that the job of a leader is not to be the chief organizer, but the chief dis-organizer.

LESSON SIX

"You don't know what you can get away with until you try."

You know the expression "it's easier to get forgiveness than permission?" Well, it's true. Good leaders don't wait for official blessing to try things out. They're prudent, not reckless. But they also realize a fact of life in most organizations: If you ask enough people for permission, you'll inevitably come up against someone who believes his job is to say "no." So the moral is, don't ask. I'm serious. In my own research with colleague Linda Mukai, we found that less effective middle managers endorsed the sentiment, "If I haven't explicitly been told 'yes,' I can't do it," whereas the good ones believed "If I haven't explicitly been told 'no,' I can." There's a world of difference between these two points of view.

LESSON SEVEN

"Keep looking below surface appearances. Don't shrink from doing so (just) because you might not like what you find."

"If it ain't broke, don't fix it" is the slogan of the complacent, the arrogant or the scared. It's an excuse for inaction, a call to non-arms. It's a mindset that assumes (or hopes) that today's realities will continue tomorrow in a tidy, linear and predictable fashion. Pure fantasy. In this sort of culture, you won't find people who proactively take steps to solve problems as they emerge. Here's a little tip: Don't invest in these companies.

LESSON EIGHT

"Organization doesn't really accomplish anything. Plans don't accomplish anything, either. Theories of management don't much matter. Endeavours succeed or fail because of the people involved. Only by attracting the best people will you accomplish great deeds."

In a brain-based economy, your best assets are people. We've heard this expression so often that it's become trite. But how many leaders really "walk the talk" with this stuff? Too often, people are assumed to be empty chess pieces to be moved around by grand viziers, which may explain why so many top managers immerse their calendar time in deal-making, restructuring and the latest management fad. How many immerse themselves in the goal of creating an environment where the best, the brightest, the most creative are attracted, retained and-most importantly-unleashed?

LESSON NINE

"Organization charts and hence titles count for next to nothing."

Organization charts are frozen, anachronistic photos in a workplace that ought to be as dynamic as the external environment around you. If people really followed organization charts, companies would collapse. In well-run organizations, titles are also pretty meaningless. At best, they advertise some authority—an official status conferring the ability to give orders and induce obedience. But titles mean little in terms of real power, which is the capacity to influence and inspire. Have you ever noticed that people will personally commit to certain individuals who on paper (or on the org chart) possess little authority—but instead possess pizzazz, drive, expertise and genuine caring for team-mates and products? On the flip side, non-leaders in management may be formally anointed with all the perks and frills associated with high positions, but they have little influence on others, apart from their ability to extract minimal compliance to minimal standards.

LESSON TEN

"Never let your ego get so close to your position that when your position goes, your ego goes with it."

Too often, change is stifled by people who cling to familiar turfs and job descriptions. One reason that even large organizations wither is that managers won't challenge old, comfortable ways of doing things. But real leaders understand that, nowadays, every one of our jobs is becoming obsolete. The proper response is to obsolete our activities before someone else does. Effective leaders create a climate where people's worth is determined by their willingness to learn new skills and grab new responsibilities, thus perpetually reinventing their jobs. The most important question in performance evaluation becomes not, "How well did you perform your job since the last time we met?" but, "How much did you change it?"

LESSON ELEVEN

"Fit no stereotypes. Don't chase the latest management fads. The situation dictates which approach best accomplishes the team's mission."

Flitting from fad to fad creates team confusion, reduces the leader's credibility and drains organizational coffers. Blindly following a particular fad generates rigidity in thought and action. Sometimes speed to market is more important than total quality. Sometimes an unapologetic directive is more appropriate than participatory discussion. To quote Powell, some situations require the leader to hover closely; others require long, loose leashes. Leaders honour their core values, but they are flexible in how they execute them. They understand that management techniques are not magic mantras but simply tools to be reached for at the right times.

LESSON TWELVE

"Perpetual optimism is a force multiplier."

The ripple effect of a leader's enthusiasm and optimism is awesome. So is the impact of cynicism and pessimism. Leaders who whine and blame engender those same behaviours among their colleagues. I am not talking about stoically accepting organizational stupidity and performance incompetence with a "what, me worry?" smile. I am talking about a guns ho attitude that says "we can change things here, we can achieve awesome goals, we can be the best." Spare me the grim litany of the "realist"; give me the unrealistic aspirations of the optimist any day.

LESSON THIRTEEN

"Powell's Rules for Picking People"—Look for intelligence and judgment and, most critically, a capacity to anticipate, to see around corners. Also look for loyalty, integrity, a high energy drive, a balanced ego and the drive to get things done."

How often do our recruitment and hiring processes tap into these attributes? More often than not, we ignore them in favour of length of resume, degrees and prior titles. A string of job descriptions a recruit held yesterday seem to be more important than who one is today, what she can contribute tomorrow or how well his values mesh with those of the organization You can train a bright, willing novice in the fundamentals of your business fairly readily, but it's a lot harder to train someone to have integrity, judgment, energy, balance and the drive to get things done. Good leaders stack the deck in their favour right in the recruitment phase.

LESSON FOURTEEN

(Borrowed by Powell from Michael Korda): "Great leaders are almost always great simplifiers, who can cut through argument, debate and doubt, to offer a solution everybody can understand."

Effective leaders understand the KISS principle, or Keep It Simple, Stupid. They articulate vivid, overarching goals and values, which they use to drive daily behaviours and choices among competing alternatives. Their visions and priorities are lean and compelling, not cluttered and buzzword-laden. Their decisions are crisp and clear, not tentative and ambiguous. They convey an unwavering firmness and consistency in their actions, aligned with the picture of the future they paint. The result? Clarity of purpose, credibility of leadership, and integrity in organization

LESSON FIFTEEN

Part I: "Use the formula P=40 to 70, in which P stands for the probability of success and the numbers indicate the percentage of information acquired." Part II: "Once the information is in the 40 to 70 range, go with your gut."

Powell's advice is don't take action if you have only enough information to give you less than a 40 percent chance of being right, but don't wait until you have enough facts to be 100 percent sure, because by then it is almost always too late. His instinct is right: Today, excessive delays in the name of information-gathering needs analysis paralysis. Procrastination in the name of reducing risk actually increases risk.

LESSON SIXTEEN

"The commander in the field is always right and the rear echelon is wrong, unless proved otherwise."

Too often, the reverse defines corporate culture. This is one of the main reasons why leaders like Ken Iverson of Nucor Steel, Percy Barnevik of Asea Brown Boveri, and Richard Branson of Virgin have kept their corporate staffs to a bare-bones minimum. (And I do mean minimum—how about fewer than 100 central corporate staffers for global $30 billion-plus ABB? Or around 25 and 3 for multi-billion Nucor and Virgin, respectively?) Shift the power and the financial accountability to the folks who are bringing in the beans, not the ones who are counting or analyzing them.

LESSON SEVENTEEN

"Have fun in your command. Don't always run at a breakneck pace. Take leave when you've earned it. Spend time with your families." 

Corollary: "Surround yourself with people who take their work seriously, but not themselves, those who work hard and play hard."

Herb Kelleher of Southwest Air and Anita Roddick of The Body Shop would agree: Seek people who have some balance in their lives, who are fun to hang out with, who like to laugh (at themselves, too) and who have some non-job priorities which they approach with the same passion that they do their work. Spare me the grim workaholic or the pompous pretentious "professional;" I'll help them find jobs with my competitor.

LESSON EIGHTEEN

"Command is lonely."

Harry Truman was right. Whether you're a CEO or the temporary head of a project team, the buck stops here. You can encourage participative management and bottom-up employee involvement, but ultimately, the essence of leadership is the willingness to make the tough, unambiguous choices that will have an impact on the fate of the organization I've seen too many non-leaders flinch from this responsibility. Even as you create an informal, open, collaborative corporate culture, prepare to be lonely.

Preparation of Letters Rogatory

If you need information from a foreign country and must use Letters Rogatory or Mutual Legal Assistance Treaties to obtain the information.  This information furnished by the US Dpartment of State.

Preparation of Letters Rogatory

Disclaimer: The information in this circular relating to the legal requirements of specific foreign countries is provided for general information only and may not be totally accurate in a particular case. Questions involving interpretation of specific foreign laws should be addressed to foreign counsel. This circular seeks only to provide information; it is not an opinion on any aspect of U.S., foreign, or international law. The U.S. Department of State does not intend by the contents of this circular to take a position on any aspect of any pending litigation.

• Summary
• Country Specific Information
• Time Frame for Execution of Letters Rogatory
• Letters Rogatory Checklist
• Drafting Letters Rogatory
• Signature and Authentication
• Translation
• Number of Copies
• Fees
• Transmittal to Department of State
• Transmittal by Department of State to Foreign Authorities Through Diplomatic Channel
• Execution of Letters Rogatory by Foreign Court
• Return of Letters Rogatory
• Authority
• Questions
• Reference
• Sample Letters Rogatory

Summary: Letters rogatory are the customary method of obtaining judicial assistance from abroad in the absence of a treaty or executive agreement. Letters rogatory are requests from courts in one country to the judiciary of a foreign country requesting the performance of an act which, if done without the sanction of the foreign court, could constitute a violation of that country's sovereignty. Letters rogatory may be used in countries where multi-lateral or bilateral treaties on judicial assistance are not in force to effect service of process or to obtain evidence if permitted by the laws of the foreign country. 22 CFR 92.54provides a definition of letters rogatory.

Country Specific Information: See the Department of State’s country specific judicial assistance information on our Internet page.

Time Frame for Execution of Letters Rogatory: Execution of letters rogatory may take a year or more worldwide. Letters rogatory are customarily transmitted via the diplomatic channel , a time-consuming means of transmission. The time involved may be shortened by transmitting a copy of the request through local legal counsel if permitted in the foreign country. Lists of foreign attorneys are available on the Internet pages of the consular sections of U.S. embassies and consulates abroad .

Letters Rogatory Checklist:

• First, review the country specific judicial assistance information on the Department of State internet page.
• Then review U.S. state or federal law on the subject.
• See suggested text for letters rogatory at the end of this guidance.
• After you prepare your draft, consider whether a judge in a foreign country speaking another language will understand what you are requesting.
• You will then need to secure the signature of a judge in the United States on your Letters rogatory.
• Next, obtain any necessary authentications specified in the Department of State country specific information.
• If the language of the country where the letters rogatory are to be presented is not English , you will need to obtain a certified translation of the letters rogatory and any supporting documents and prepare the entire package in duplicate for transmittal to the U.S. Department of State.

Suggestions for Drafting Letters Rogatory:

• Letters rogatory should be written in simple, non-technical English and should not include unnecessary information which may confuse a court in the receiving foreign country.
• Avoid use of the term discovery.
• Requests for documents should be as specific as possible to avoid the appearance of a fishing expedition which may result in refusal of the foreign country to execute the request. Try not to use phrases such as any and all documents.
• If particular procedures to be followed by the foreign court are preferable, include the specifics in the letters rogatory (for example, verbatim transcript, place witness under oath, permission for U.S.or foreign counsel to attend or participate in proceedings if possible, etc.)
• The letters rogatory should be addressed To the Appropriate Judicial Authority of (Insert name of Country).
• The form of letters rogatory depends on the country to which it is addressed and the assistance being sought. Some countries have statutory guidelines for granting assistance. See our country specific judicial assistance information .

Essential elements of letters rogatory:

• A statement that a request for international judicial assistance is being made in the interests of justice;
• A brief synopsis of the case, including identification of the parties and the nature of the claim and relief sought to enable the foreign court to understand the issues involved;
• The type of case [e.g. civil, criminal, administrative];
• The nature of the assistance required [compel testimony or production of evidence; service of process];
• Name, address and other identifiers, such as corporate title, of the person abroad to be served or from whom evidence is to be compelled, documents to be served;
• A list of questions to be asked, where applicable, generally in the form of written interrogatories;
• A list of documents or other evidence to be produced;
• A statement from the requesting court expressing a willingness to provide similar assistance to judicial authorities of the receiving state;
• Statement that the requesting court or counsel is willing to reimburse the judicial authorities of the receiving state for costs incurred in executing the requesting court's letters rogatory.

Signature and Authentication: Letters rogatory must be signed by a judge. The clerk should not sign on behalf of the judge. For most countries, the seal of the court and signature of the judge is sufficient. Consult our country-specific information for guidance about authentication procedures for particular countries. Many countries will not accept letters rogatory issued by an Administrative Law Judge. In administrative cases, it is possible to obtain letters rogatory issued by a federal district court under the All Writs Act, 28 U.S.C. 1651.

Translation: The letters rogatory and any accompanying documents must be translated into the official language of the foreign country. The translator should execute an affidavit as to the validity of the translation before a notary.

Number of Copies: Forward to the U.S. Department of State for transmittal to the foreign authorities:

• The original English version bearing the seal of the court and signature of the judge [or a certified copy]; a photocopy of the English.
• The original translation and a photocopy of the translation.
• The original documents will be served upon the designated recipient or deposited with the foreign court in connection with a request for evidence, and the copies returned to the court in the U.S. as proof of execution.
• For requests involving multiple witnesses in diverse locations, either prepare a separate letters rogatory for each witness, or provide a certified copy of the single letters rogatory (plus translation and duplicate copy noted above) for each witness. The foreign country may assign the matter to different courts.

Fees: The current consular fees for transmittal of letters rogatory are available in 22 CFR 22.1 Schedule of Fees. Counsel are requested to submit a certified bank check payable to the U.S. Embassy (insert name of capital of the foreign country, for example, U.S. Embassy Tokyo). Corporate or personal checks are not acceptable. Foreign authorities may also charge a fee. Counsel will be notified by the U.S. embassy and/or the Office of American Citizens Services and Crisis Management in the Department of State if the embassy is advised by foreign authorities of any applicable local fees. There is no consular fee for letters rogatory on behalf of federal, state or local government officials. If the letters rogatory request compulsion of evidence from more than one witness or service of process on more than one person, multiple fees may be charged if more than one foreign court is required to execute the request due to multiple jurisdictions.

Transmittal to the Department of State: The letters rogatory and accompanying documents may be submitted to the Office of American Citizen Services, (CA/OCS/ACS), U.S. Department of State, SA-29 4 th Floor, 2201 C Street NW, Washington, DC 20520-0001. Phone 1-888-407-4747.

Cover Letter: The documents should be accompanied by a cover letter including the following elements:

• Name of case;
• Docket number;
• Foreign country;
• Nature of request: (service of process; compulsion of testimony; production of documents, etc.)
• Person to be served or from whom evidence is to be obtained: (name and address mandatory, phone number if possible.)
• Mailing address of U.S. court to which the executed letters rogatory should be returned:
• Special instructions: (Example, Federal Express account number; U.S. hearing/trial date, etc.)
• Fee enclosed
• Deposit (if required) enclosed:
• Statement of responsibility for additional costs incurred in excess of the required deposit which accompanies the letter.
• Local foreign counsel (if any): (name and address, phone number)
• Name, address, telephone, fax number and email address of requesting attorney in United States.

Transmittal of Letters Rogatory by Department of State to the Foreign Authorities through Diplomatic Channel: Letters rogatory generally are transmitted to foreign judicial authorities through the diplomatic channel. The diplomatic channel is a route by which the documents are sent to the foreign court. The normal process is as follows:

• Letters rogatory transmitted by court or counsel to Department of State;
• Letters rogatory transmitted by Department of State to U.S. Embassy;
• Letters rogatory transmitted to Ministry of Foreign Affairs by U.S. Embassy;
• Letters rogatory transmitted to Ministry of Justice by Ministry of Foreign Affairs;
• Letters rogatory transmitted to Foreign Court by Ministry of Justice.

Execution of Letters Rogatory by the Foreign Court: The foreign court will execute letters rogatory in accordance with the laws and regulations of the foreign country. In compelling evidence, for example, many foreign courts do not permit foreign attorneys to participate in their court proceedings. Not all foreign countries utilize the services of court reporters or routinely provide verbatim transcripts. Sometimes the presiding judge will dictate his or her recollection of the witness' responses.

Return of Executed Letters Rogatory: When letters rogatory are executed by the foreign authorities, they are generally returned to the Department of State via the diplomatic channel and the Office of American Citizens Services will send them to the requesting court in the United States via certified mail. Requesting counsel is also notified. At the request of the court, the executed letter rogatory and proof of service/evidence produced can be returned directly to requesting counsel. If transmittal by commercial express delivery service is preferred, please include your account number in the covering letter.

Authority: The issuance of letters rogatory by federal courts is provided for under Rule 28(b) Fed. R. Civ. P. and Rule 4(f)(2)(B), Fed. R. Civ. P . Letters rogatory have also been issued under the All Writs Act, 28 U.S.C. 1651. 28 U.S.C. 1781 and 28 U.S.C. 1782 describe the transmittal of letters rogatory through the Department of State and through the district courts; 28 U.S.C. 1696 provides for the use of letters rogatory for service of process pursuant to a request by a foreign tribunal; Consular procedures for transmittal of letters rogatory are detailed in 22 CFR 92.66: Article 5(j), Vienna Convention on Consular Relations, 21 U.S.T. 77, 596 UNTS 261; TIAS 6820 (where applicable); and Bilateral Consular Conventions(where applicable.)

Questions: Additional questions regarding letters rogatory should be addressed to the appropriate geographic division of the Office of American Citizens Services, Tel: 1-888-407-4747.

Selected Reference:

American Bar Association, Obtaining Discovery Abroad (2006).

Born and Rutlege, International Civil Litigation in United States Courts, Aspen Publishers (2006).

Epstein, Snyder and Baldwin, International Litigation: A Guide to Jurisdiction, Practice and Strategy, Transnational Pub. (1998).

McClean, David, International Co-operation in Civil and Criminal Matters, Oxford University Press (2002).

Ristau, Bruno, International Judicial Assistance, Civil and Commercial, International Law Institute (1995).http://travel.state.gov/law/judicial/judicial_683.html#summary

Troy Davis execution: Did the death penalty deliver justice?

From the Christian Science Monitor, By Patrik Jonsson:

For his supporters, the execution of Troy Davis marked a grave injustice and showed the death penalty at its worst. But others found their faith in the justice system reaffirmed by the fact that the Davis verdict stood after an abundance of case reviews.

A last-ditch appeal to the Supreme Court pushed back Troy Davis's execution by several hours, but in the end, Mr. Davis died by lethal injection Wednesday night in a prison in Jackson, Ga.

"I am innocent," were his last words to the family of Mark MacPhail. "I did not have a gun."

Mr. Davis was convicted of the 1989 murder of Mr. MacPhail, a Savannah, Ga,. police officer.

For thousands around the world, Mr. Davis's death marked a grave injustice, given vexing questions and new doubts about his guilt.

But while many saw the execution as symbolic of a fallible justice system, and an immoral punishment, others found their faith in the system reaffirmed by an abundance of court and executive reviews that, time after time, let the verdict against Davis stand.

The Davis case is but one in a long series of death penalty cases that push individual states to debate the morality, legality, and efficacy of the death penalty.

This week alone, the US Supreme Court ordered stays for two men in Texas scheduled to be executed, while a third, Lawrence Brewer, was executed Wednesday night for the dragging death of James Byrd near Jasper, Texas, in 1998. Alabama has an execution scheduled Thursday.

Davis was convicted in 1991 for the shooting death of off-duty police officer MacPhail, who had come to the aid of a homeless man being beaten near a Savannah, Ga., Burger King. A jury of seven blacks and five whites found that Davis had shot a man earlier in the evening and used the same gun to fire into MacPhail's face and chest, killing the young father of two before he had a chance to draw his weapon.

The murder weapon was never found and defense lawyers cast doubt on a ballistics test that linked shell casings at the scene to casings found at another shooting for which Davis was convicted.

Since the verdict, seven of nine witnesses in the case changed or retracted their accounts, and new witnesses have pointed to the possibility that another man at the scene fired the weapon. But Federal District Court Judge William T. Moore said those new statements amounted to "smoke and mirrors" to obfuscate the original verdict.

On Tuesday, a Georgia clemency board, for the fourth time, declined Davis's request to commute the sentence to life in prison. The Georgia board has commuted three other death row sentences in the last decade.

Full article can be found here.

Troy Davis' Clemency Denial: The Failure of a Legal 'Safety Valve'

From Time:

When Texas Governor Rick Perry said in a recent Republican presidential candidates' debate that his sleep is untroubled by doubts about the guilt of any of the 235 men and women who have been executed on his watch, he pointed out that his state has "a very thoughtful, a very clear process in place" to review death penalty cases. A cornerstone of that process, in Texas and elsewhere, is the Board of Pardons and Paroles, which is designed to act as a safety valve, removed from the emotion of the crime and the courtroom. It's a last resort, not to retry a case, but to ensure that a conviction is so ironclad that there is no doubt that it merits the ultimate punishment.

That safety valve failed in Georgia Tuesday, just as it has on a number of occasions in Texas. The Georgia Board of Pardons and Paroles denied convicted murderer Troy Davis' last appeal for clemency, setting him on a seemingly unstoppable course for execution Wednesday evening.

For the simplest picture of why that decision was so wrong — as so many of Davis' myriad supporters have pleaded for years — just look at the numbers.

— 7: that's how many of the nine original eyewitnesses have recanted their testimony against Davis.

— 0: the amount of physical evidence linking Davis to the crime (no fingerprints, no DNA, no weapon recovered).

— 3: the number of jurors who voted for death in the original trial who now believe their vote was a mistake.

— 22: the number of years the family of slain police officer Mark McPhail has had to wait for an answer to the question of whether or not Davis would die for the crime.

The last number — a symptom of the interminable appeals process — would seem to speak in favor of simply executing Davis and getting it over with. Justice delayed, as Newt Gingrich said when he fought for a law that limited death penalty appeals, is justice denied (a statement that he seemed to believe pertained only to the families of the victims, not the convicted). But the truth is that the Georgia Board of Pardons and Paroles should have ended this macabre theater when they had the chance three years ago, by commuting Davis' death sentence and either letting him serve out a life term or granting him a retrial.

Beyond all the evidentiary problems of Davis' case — to take one example, police Re-enacted the crime scene with all the eyewitnesses together and talking to each other, a practice which is now unheard of — it never had any hallmarks of a case that should have been eligible for the ultimate penalty. It was a senseless murder late at night that was only half-seen in a half-lit Burger King parking lot. A good man was killed, but even death penalty supporters, a number of whom have called for clemency in Davis' case, would agree that death cases should be reserved for those with the most incontrovertible evidence. Even before witnesses started recanting and jurors started regretting, Davis' case never met that standard.

"Seven of the nine witnesses have recanted at this point. That in and of itself is problematic," says Mary Schmid Mergler, Senior Counsel for the non-profit Constitution Project, whose high-profile advisers (a mix of abolitionists and death penalty supporters) have come out in favor of clemency for Davis. "But the most troubling thing is just the fact that a death penalty conviction rests solely on eyewitness testimony to begin with."

That was one of the arguments made in Monday's board meeting before the five board members appointed by former Governor Sonny Perdue (three of the members are new since Davis' case was initially heard in 2008). It was a quick affair: three hours for the defense, the same for the prosecution — though defense lawyers complained the prosecution got more time — followed by a decision released just after 8am the next morning.

Full article can be found here.

Changes Coming to Police Line-Up Procedures?

A new report released by the American Judicature Society has found that double-blind sequential lineups, which are lineups where the administrating officer does not know which person is the suspect and the witness only views one suspect at a time, produce fewer mistaken identifications that lineup procedures that present all of the suspect photographs at once or simultaneously. The report, “A Test of Simultaneous vs. Sequential Lineup Methods: An Initial Report of the AJS National Eyewitness Identification Field Studies,” has implications for reducing wrongful convictions in the United States criminal justice system. Eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in more than 75% of the 273 convictions overturned through DNA testing. The report is released on the heels of a decision from the New Jersey Supreme Court cited this “troubling lack of reliability” in setting new rules for addressing those weaknesses in New Jersey courtrooms. The United States Supreme Court is scheduled to hear arguments, in November, in its first significant eyewitness identification case in 34 years. The case, Perry v. New Hampshire, is concerned with whether judges must take a hard look at all identifications arising from suggestive circumstances or only those involving official misconduct. Read more from New York Times or Innocence Project.

FBI Lesson Plan: Muslims Are Terrorist Sympathizers

Whistleblowers say agency's anti-Islamic lesson plans are counterproductive. 

From Slate: 

One of al-Qaida’s goals is to convince mainstream Muslims that their faith requires them to violently oppose American interests. Apparently, the FBI agrees. 

Citing documents leaked by FBI whistleblowers, Wired’s Danger Room blog reports that the agency has been teaching its counter terrorism agents that mainstream American Muslims are “likely to be terrorist sympathizers” and that the Islamic pillar of zakat, or almsgiving, is a “funding mechanism for combat.” Other gems from the Quantico lesson plans include a description of Mohammed as a “cult leader” and a pseudo-scientific graph showing that while Jews and Christians have become more peaceful over time, Muslims have always been violent. 

Danger Room, which has exposed crude anti-Muslim FBI training materials in the past as well, writes that the FBI has dismissed some of those documents as “rudimentary” lesson plans that are no longer in use. But it finds that at least one of the newly uncovered briefings took place as recently as March 21. 

As Mother Jones' Adam Serwer points out, that’s around the same time that Sens. Joe Lieberman and Susan Collins wrote to Attorney General Eric Holder demanding to know what standards the FBI uses to vet its counter terrorism trainers. The call followed a Washington Monthly investigation showing that some of those trainers were little more than Islamophobic cranks spewing jokes and anecdotes designed to promote an us-vs-them worldview. 

In the latest Danger Room post, an FBI spokesman responds with the excuse that “a disclaimer accompanied the presentation stating that the views expressed are those of the author and do not necessarily reflect the views of the U.S. government.” Danger Room adds: 

Several of these briefings were the work of a single author: an FBI intelligence analyst named William Gawthrop. In 2006, before he joined the Bureau, he gave an interview to the website WorldNetDaily, and discussed some of the themes that made it into his briefings, years later. The Prophet “Muhammad’s mindset is a source for terrorism,” Gawthrop told the website, which would later distinguish itself as a leader of the “birther” movement, a conspiracy theory that denies President Obama’s American citizenship. 

Frustrated with Obama’s inaction on the issue, Lieberman, an Independent from Connecticut, and Collins, a Maine Republican, are now considering drafting legislation to address the problem, Talking Points Memo reported on Tuesday. In a letter to the president, the senators wrote: 

"As we have previously stated in letters to this administration, we have serious concerns that improper training may not be isolated occurrences and could be detrimental to our efforts to confront homegrown terrorism. Since Muslim Americans are our main allies in the fight against violent Islamist extremism domestically, any training that implies otherwise is both inaccurate and counterproductive." 

Full article can be found here.