Questions on Use of Compelled Testimony in LIBOR Convictions

The government can breathe a sigh of relief following this month’s ruling by Judge Jed S. Rakoff that its recently secured convictions of a pair of LIBOR traders will not be dismissed on Fifth Amendment grounds.¹ But Judge Rakoff’s decision to conduct a full Kastigar analysis of whether the defendants were prejudiced by their involuntary statements made to a foreign government—albeit without squarely resolving whether the Fifth Amendment privilege against self-incrimination applies to such situations—will have a meaningful effect on cross-border government investigations ranging far beyond this case.

Case Background

On Nov. 5, 2015, a federal jury found the defendants, former Rabobank traders Anthony Allen and Anthony Conti, guilty of wire fraud and conspiracy for their role in manipulating LIBOR.² The convictions marked the U.S. Department of Justice’s first successful prosecution of individuals in connection with the LIBOR scandal. But from the outset the defendants attempted to paint a picture of a prosecution tainted by the government’s reliance on a witness who had been exposed to defendants’ compelled testimony before a foreign government agency.