IPR PROGRAM REVEALS BASIS FOR CLOSER COOPERATION WITH THE

UNCLAS HANOI 000815 SIPDIS STATE FOR INL BOULDIN DOJ FOR CRIM AAG BRUCE SWARTZ DOJ/OPDAT FOR LEHMANN/ALEXANDRE, DOJ/CCIPS SENSITIVE SIPDIS E.O. 12958: N/A TAGS: KIPR ETRD ECON PGOV KCRM KJUS SNAR VM SUBJECT: IPR PROGRAM REVEALS BASIS FOR CLOSER COOPERATION WITH THE PROCURACY (U) This cable is sensitive but unclassified. Not for Internet. ¶1. (SBU) Summary. On April 3-6, USAID Star Vietnam and the United States Patent Trademark Office (USPTO) hosted a program in Hanoi focused on criminal enforcement of intellectual property rights (IPR) with the Supreme People's Procuracy. During the week, IPR experts from the U.S. Department of Justice (DOJ) and USPTO presented an overall model for a national IPR enforcement strategy for prosecutors as well as practical tips in prosecuting IPR crimes under Vietnamese laws. While the IPR information was well received, what was more striking was the thirst on the part of the Vietnamese Procuracy for more basic information about developments in international criminal procedure, police/prosecutor cooperation, and trial adversary skills. Questions from the Vietnamese prosecutors present revealed an opportunity for deeper engagement between the DOJ the Vietnamese Procuracy as the latter moves from its current Soviet-style supervisory mentality to the role of public prosecutor in an evidence-based system. End summary. ¶2. (U) USAID-STAR Vietnam and the USPTO organized an April 3-6 seminar in Hanoi on criminal enforcement of intellectual property rights (IPR). The focus of the conference was to discuss Vietnam's new obligations to protect IPR following its accession to the World Trade Organization. The USPTO and Star experts described substantive international IPR enforcement standards that Vietnam must meet, while DOJ experts outlined organizational strategies, such as developing a cadre of specialized IPR prosecutors, creating prosecutor/police/rightsholder task forces, seeking deterrent sentences, and obtaining evidence from abroad, to achieve effective IPR enforcement. (Note: these IPR issues will be further explored during a two-week U.S. visit this May of a delegation of Vietnamese prosecutors and judges also supported by Star Vietnam and USPTO. End Note). Deputy Procurator General Kuat Van Nga moderated the proceedings. ¶3. (U) The highlight of the program was the two-day role play involving a hypothetical trademark case. DOJ/OPDAT Resident Legal Advisor (RLA) Robert Strang (Jakarta) and DOJ/OIA Regional IP Coordinator Christopher Sonderby (Bangkok),two prosecutors with IPR investigative and trial experience, conducted mock interviews of a real Vietnamese police investigator and a Baker and McKenzie IPR attorney playing the role of the rightholder victim. Together with the seminar participants, the DOJ prosecutors analyzed the evidence that the investigator had already gathered and suggesting future lines of investigation such as controlled purchases, introducing an informant, and conducting a simultaneous takedown of the factory and the retail outlets. On the second day, the parties conducted a mock trial of the infringer. RLA Strang and the Vietnamese attorney presented their case to a three judge panel consisting of United States District Court Judge Bernice Donald, DOJ RLA Brian Pierce (Bangkok),and a Vietnamese prosecutor. The panel found the mock trademark infringer guilty and sentenced her to three years' imprisonment. ¶4. (SBU) During the mock proceedings, Deputy Procurator General Nga repeatedly brought to the Vietnamese prosecutors' attention the methods by which U.S. prosecutors presented evidence. The Vietnamese still rely heavily on the civil law dossier system inherited from the French where the real evidence upon which guilt or innocence is predetermined by the documents placed in the case file by the investigator, not the evidence presented in court. Nga noted that the Vietnamese criminal procedure code had changed in 2004, but still had not fully adopted an adversarial model where evidence is challenged in court. ¶5. (SBU) Nga and the junior prosecutors were also fascinated by the police-prosecutor model used in the U.S. federal system. They asked detailed and practical questions throughout the week regarding how such cooperation was ensured and how were conflicts between prosecutors and investigators resolved. These questions reflected a civil law conception of investigators and prosecutors operating in different spheres with little coordination or interaction (except to complain about each other's work). The DOJ prosecutors explained that the laws governing certain investigative activities, such as obtaining bank records, email records, wiretaps, and search and arrest warrants, required the FBI and prosecutors to work together to apply to the court for such records, but there was also a culture of cooperation and that federal prosecutors became deeply involved in the investigation at an early stage while FBI agents were not only witnesses, but also actively assisted in the courtroom. ¶6. (SBU) Finally, more generally, Nga made it clear he wished to see Vietnamese Procuracy move beyond its Soviet-style view of prosecutors as exercising a general supervising/judicial oversight over the criminal justice system, and into the role of advocate for the state. Such a paradigmatic reform would likely require a substantial change to the Vietnamese criminal procedure code as many of traditionally judicial functions of the current system, such as the issuance of search warrants and detention, are currently controlled by the Procuracy (Note: With DOJ assistance, the Russian Procuracy began this transition in 2002 following the passage of the new Russian criminal procedure code). COMMENT -------------- ¶7. (SBU) The Vietnamese prosecutors showed a respectful interest in the enforcement of IPR cases during this program. The bigger picture, however, revealed their interest in the U.S. criminal procedure system. Future DOJ and other USG programs directed at engaging the Procuracy at this more basic level have the potential to lead to the type of criminal procedure reforms that will assist in strengthening of rule of law in Vietnam. End Comment. MARINE