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