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Cablegate: Ipr Program Reveals Basis for Closer Cooperation with The

VZCZCXYZ0011
RR RUEHWEB

DE RUEHHI #0815/01 1241010
ZNR UUUUU ZZH
R 041010Z MAY 07
FM AMEMBASSY HANOI
TO RUEHC/SECSTATE WASHDC 5262
INFO RUEAWJA/DEPT OF JUSTICE WASHINGTON DC
RUEHBK/AMEMBASSY BANGKOK 5648

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

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