Techniques in Building and Linking Complex Evidence in Corruption Cases using the Palermo Convention

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Techniques in Building and Linking Complex
Evidence in Corruption Cases using the Palermo
Convention

• UNODC

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The Problem of Perspective

• The tree against
• the forest

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Types of Corruption

• From the perspective of the ACT
• Single act
• Repetitive acts
• Pattern of Corruption

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Types of Corruption

• From the point of view of the PEPETUATOR
• Single
• Collective
• Linked to Organized Crime

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Collective OffencesCorruption
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Investigation

• What is being investigated?
• Relationship between a criminal or
  administrative norm with the reality.
• The rule of evidence is a norm in which the
  investigation has to be based. Therefore
• - We need strategies

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Techniques of Investigation (forward looking)

• Criminal activity constituting predicate offences
  have not yet been committed
• Electronic Surveillances
• Controlled Deliveries
• Undercover Operations
• Wiretapping

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Techniques of Investigation (backward looking)

• Investigation of criminal activity is
  accomplished post facto, by uncovering historical
  predicate criminal and OC events
• Collaborating witness
• Financial investigations
• Traditional techniques of investigation

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Elements of a strategy

• Try to figure out the type of case.
• Determine the technique that you are going to
  use
• Go to all the elements of the Falcone check
  list
• Determine the relationship with other
  international elements

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Corruption in the Palermo Convention

• Article 8
• Criminalization of corruption
• 1. Each State Party shall adopt such legislative
  and other measures as may be necessary to
  establish as criminal offences, when committed
  intentionally
• (a) The promise, offering or giving to a public
  official, directly or indirectly, of an undue
  advantage, for the official himself or herself or
  another person or entity, in order that the
  official act or refrain from acting in the
  exercise of his or her official duties
• (b) The solicitation or acceptance by a public
  official, directly or indirectly, of an undue
  advantage, for the official himself or herself or
  another person or entity, in order that the
  official act or refrain from acting in the
  exercise of his or her official duties.

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Measures against Corruption

• Adopt legislative, administrative and other
  measures to
• Promote the integrity of public officials.
• Prevent, detect and punish .
• Provide independence to the anticorruption
  authorities.

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Organized Crime linked to Corruption
Group of three or more persons that exists during
certain time. It acts by previous agreement, with
the objective of commiting one or more serious
crimes (4 years of jail). With the aim of
obtaining financial or other material benefit
Organized Crime Group
O.C. links with Violence and Corruption
The O.C. Groups exert their powers through the
threat and use of violence
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Organized CrimeTwo Formulas

• First (Conspiracy)
• Agreement between 2 or more people
• To commit serious crimes
• With the aim of obtaining financial or other
  material benefit
• Second
• Active participation in the organized group
• Other activities that contribute to the criminal
  objectives of and OC group AND with knowledge
  that participation will contribute to the aim of
  the organized criminal group

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Other Related Conducts

• Organizing,
• Aiding,
• Abetting,
• Facilitating or
• Counselling the commission of serious crime
  involving an organized criminal group.

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Laundering of proceeds of crimeCriminal Offences

• With knowledge by the offender of the illicit
  origins of assets,
• conversion or transfer of property
• concealing or disguising the illicit origin,
  source, location, disposition, movement,
  ownership of or rights with respect to property
• acquisition, possession or use of property.
• Association with or conspiracy to commit,
• attempts to commit and abetting,
• facilitanting and counselling

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Investigating Corruption Cases using the Palermo
Convention
The Palermo Convention against
Corruption Articles 2a, 8, 9
Acts of Corruption

• Single act of bribery

Corruption as an instrument of organized crime
Corruption as an act of organized crime (3 or
more persons)
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Participation in Organized Crime is a second
level offence

• Logically it presupposes a first level offence,
  called predicate offence
• Even though it is an autonomous crime

Organized Crime
Money laundering
Drug Trafficking
Corruption
Murder
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Only three second Level Offences
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No additional prohibitions

• All O.C. offences are already prohibited in the
  predicate offence-prohibitions

Prohibitions without O.C. offence.
Prohibitions with O.C.
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Obstruction of justice

• The use of physical force, threats or
  intimidation or the promise, offering or giving
  of an undue advantage to
• Induce false testimony
• Interference
• in the offering of testimony
• in the production of evidence
• with the exercise of official duties.

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Confiscation and seizure

• Proceeds of crime
• Property derived or obtained directly or
  indirectly from the commission of an offence
• Property, equipment and instruments of crime
• Obligation to enable
• Identification and tracing
• Freezing or seizure
• Disclosure of financial and commercial records
• International co-operation rules

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General elements for the fight against
Transnational Organized Crime

• General rules for
• Extradition
• Mutual Legal Assistance
• Transfer of sentenced persons
• Transfer of criminal proceedings
• Maintain database of criminals and activities

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Joint investigations and Special Investigative
Techniques

• Possibility of joint investigations
• Joint investigative teams
• Controlled delivery
• Undercover operations
• Electronic surveillance
• Training and technical assistance

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Collaborating and protected witnesses (and
victims)

• Measures to
• Encourage witness collaboration
• Reduction of punishment or immunity
• Effective protection from potential retaliation
  or intimidation of
• WITNESSES or relatives
• VICTIMS (compensation)
• Physical protection
• Prohibition to disclose information concerning
• Identity and whereabouts of such persons
• Testimony through video links

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How to Investigate Corruption and the link to
Organized Crime

• OC uses a closed and tight-knit structure
  therefore requiring extraordinary measures to
• infiltrate the inner circle
• -or-
• extract a member from the OC group

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Techniques
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Understanding the Limit of each Instrument

• Undercover Controlled deliveries
• Electronic Surveillance
• Collaborating Witnesses
• Financial Investigations
• Use every technique of investigation available.

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International Cooperation

• Police-to-Police
• Interpol
• Judicial (International Rogatory)
• Mutual Legal Assistance
• F.I.U. to F.I.U.

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The X Mistake

• Undercover Case
• Using third parties (no police)
• Created the most important Marijuana trafficker
  who never dealt with cocaine
• Mistakes on the conception about the organization
  and mistakes in the technique used

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The Evidence in Law

• In Instantaneous Crimes
• The fact happens in a moment
• The evidence consist of proof that these facts
  happened
• Murder as an Example
• Witnesses, ballistic, finger prints, DNA
  testing, etc...

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The Evidence in Organized Crime

• On drug trafficking or Mafia, the bosses rarely
  come in contact with the drugs and rarely kill
  personally
• The Organized Crime group is continuous in its
  criminal activity
• The crimes are continued and continuous

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In Organized Crime Cases, it is NOT Necessary to
Prove

• That the boss ordered the crime
• It is sufficient to proof
• that he/she commands or belongs to an
  organization that traffics in drugs, order
  murders or blackmailing, or engages in certain
  predicate offenses

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Evidence Integrity(Just like a Gothic Cathedral)

• It must be harmonic
• Trying to build modularly a crime and linking it
  to other crimes
• Proving the existence of an organization
• Every piece supports other pieces
• Relating one to each other

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Harmonic Evidence Integration

• A collaborating witness statement is not enough
• It is also necessary to confirm as far as
  possible all that he/she says
• Electronic surveillance is not enough
• It is hard for prosecutors and judges to
  interpret and juries can misinterpret
• Its also necessary to prove a defendants role
  and membership in the organization

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Falcone Check List as an Instrumentto Link
Investigations of Complex Cases
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Other Techniques of Traditional Investigation

• Use of informants
• Police and Prosecutorial Interviews and
  Interrogation
• Information given by victims.
• Use of collaborating witnesses
• Surveillance
• Use of Pen-Register (Phone Calls)

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Other Techniques

• Analysis of documents
• Ballistic tests to determine related homicides.
• Victims analysis to better understand criminal
  behavior.

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1 . The Network and its Illegal Activities

• 1.1. The criminal network
• 1.1.1 Hierarchical or flexible structure
• 1.1.2 Composition Describe who is part of the
  network, and what roles they play.
• 1.2.3 Handling of Evidence
• Forwarlooking and backwardlooking

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a) Standard Hierarchical Structure
This is the most common form of organized
criminal group from
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b) Regional Hierarchical Structure
Even if they are part of a hierarchical criminal
group with several strict lines of command, there
is a level of autonomy for the regional
organizations under the groups control.
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c) Hierarchical Association
Association of organized criminal groups with a
governing organ or body.
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d) Central Group
Generally consists in a limited number of
individuals which form a relatively closed
central group to do illicit business.
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e) Criminal Network
They are defined by the illicit activities of
clue individuals which frequently change their
alliances. Those individuals may not consider
themselves as members of a specific criminal
group, nor are they considered like that by
external individuals. Nevertheless they have
ties with a series of illicit projects.
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1.2 Primary Activities

• Illicit markets controlled by the criminal
  network.
• Types of criminal activity they engage in.

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2. Modus operandi

• 2.1 Logistic roles of the members of organized
  crime networks
• 2.1.1 How are the tasks distributed among
  members of the network?
• 2.1.2 What are the specific roles and qualities
  of the prime suspects?
• 2.1.3 Do the leaders of the network have
  exclusive contacts or exclusive qualities that
  are crucial to the criminal network?
• Handling of evidence
• All the evidence, forward-looking and
  backward-looking

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2.2 Procurement logistics.Preparatory
activities of the criminal network.

• 2.3 Production logistics.
• The production phases
• Handling of evidence
• All the evidence, forwardlooking and
  backwardlooking
• Looking for proceeds of the criminal activity
  and how they are transformed

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2.4 Marketing logistics

• How does the criminal network make sure there is
  a demand for their illegal goods or services?
• Means of analysis
• Analysis of the market situation from the
  information gathered in the investigation.

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Synthesis of the important elements

• Understand that Organized Criminal Groups look
  for a financial gain or profit.
• Develop the investigation trying to understand
  the market.
• What, how and how much does the organization
  sell?
• Who is it sold to? And Who buys it?
• How is it produced?

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2.5 Financial logistics

• 2.5.1 Describe the networks profit estimates
  (selling prices minus costs)
• 2.5.2 Describe how the network spends the
  proceeds of crime
• 2.5.3 Describe the networks investments
• 2.5.4 Describe any money laundering activities of
  the network
• 2.5.5 Describe the networks use of underground
  banking

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Investigative Techniques

• It is always easier to start from the criminal
  organization finishing with the financial
  analysis.
• It is also possible to start from the financial
  analysis, however, it is more difficult.
• After determining the profits
• Analysis of the suspects assets.
• Analysis of his family assets
• Know his contacts with the illicit world and
  other organizations
• Understand other elements of the network with
  forward-looking and backwadlooking techniques.

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Other Elements

• Relations with their social environment
• Gathering information from collaborating
  witnesses.
• Developing financial analysis of enterprises

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3. Contacts with the illicit environment

• 3.1 Contacts with other networks/criminal
  groups
• 3.2 Interaction with criminal partners
• 3.2.1. The Role of facilitators
• 3.2.2. Cooperation or Competition
• How the network competes or cooperates with other
  groups.

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3.2.3 Methods of concealment- Describe if the
network tries to hide its activities from other
criminal partners.3.2.4. Territorial deals or
disputes- Is the network involved in disputes
with other groups.
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Violence

• 3.2.5. The use of violence
• - Describe what types of violence are used
  against other criminals/ criminal groups.
• Means of analysis and evidence
• All the violent acts to determine behavior
  patrons.
• Comparative analysis of different modus operandi
• Comparison of ballistic tests and victim-offender
  analysis.
• Knowledge of the executional codes of the
  organizations

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• 3.3 Interactions with terrorists or separatists
  groups
• Does the network have contacts with terrorist
  groups or separatist movements?

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4. Illicit Protection

• 4.1. Shielding against investigation and
  prosecution
• 4.2. Corruption
• 4.3. Contacts with external
  experts/specialists

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Analysis and Evidence

• Determine operative infiltrations
• Outline of protection
• Intents of corruption
• Means of evidence
• Financial investigation of the civil servant
• Monitoring of the civil servant
• Wire Taping
• Collaborating witnesses
• Undercover Agents

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4.4. Interactions with legitimate businesses

• The existing relationship between the criminal
  group and legitimate businesses.
• By agreement
• By infiltrating the different administrative
  levels
• Lack of anti-criminal controls in the business.
• Sporadic use of services

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5. Opportunities for Prevention

• 5.1 Opportunities in the underworld
• Circumstances or events that make it easy or
  difficult for the network to perform their
  illegal ativities.
• Barriers that can be put against the networks
  activities.
• 5.2 Opportunities in the legitimate environment
• Circumstances or lack of rules and regulations
  that make it particularly easy/attractive for the
  network to involve its licit environment in its
  criminal activities.

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Barriers

• Why does the network need to involve legitimate
  businesses, or why does it need to involve
  persons having a certain job or expertise?
• What barriers can be put up against the networks
  interactions with the legitimate world.