279
Subpoenas
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- Subpoenas Directed to United States Citizens
and
Permanent Residents of the United States: 28 U.S.C. § 1783
authorizes
the courts of the United States to issue subpoenas -- to a national
or resident
of the United States located in a foreign country -- to appear or
to produce
evidence. The subpoena may direct the witness to appear in the
United States or
abroad (e.g., at an American Embassy or consulate). 28 U.S.C.
§ 1784
authorizes contempt sanctions if the subpoenaed person fails to
appear or
otherwise comply with the subpoena. Foreign laws may, however,
restrict the
method of serving such subpoenas, especially when the witness is a
dual national.
The Office of International Affairs (OIA) aids prosecutors in
selecting the
appropriate methods for serving subpoenas abroad. In most cases,
the subpoena
may be served by an American consular official who acts upon
receiving a request
from the Department of State. These requests are coordinated by
the Special
Authorizations Unit, Justice Management Division (202-307-1942).
- Bank of Nova Scotia Subpoenas: The United States has
obtained bank
or business records located abroad by serving subpoenas on branches
of the bank
or business located in the United States, even where production of
the records
would violate the foreign country's secrecy laws. The courts have
upheld the use
of subpoenas to compel a bank that does business in the United
States to turn
over records held by a branch of the same bank in a foreign
country, even where
production of the records would violate the foreign country's
secrecy laws.
See In Re Grand Jury Proceedings (Bank of Nova
Scotia), 740 F.2d
817 (11th Cir.), cert. denied, 469 U.S. 1106 (1985); In
Re Grand Jury
Proceedings (Bank of Nova Scotia), 691 F.2d 1384 (11th Cir.
1982), cert.
denied, 462 U.S. 1119 (1983); In Re Grand Jury Subpoena
Directed to Marc
Rich & Company A.G., 707 F.2d 663 (2d Cir.), cert.
denied, 463 U.S.
1215 (1983); but see, In Re Sealed Case, 832 F.2d
1268, 1272 (D.C.
Cir. 1987) (subpoena for records of a foreign company is
enforceable only if the
company does sufficient business or otherwise has sufficient
contacts within the
United States to enable court to exercise personal jurisdiction
over it); In
Re Sealed Case, 825 F.2d 494 (D.C. Cir. 1987) (declining to
decide "the
general issue of whether a court may ever order action in violation
of foreign
laws" but, nonetheless, holding that "even if a court has the power
to issue
contempt orders under certain circumstances," no order should have
issued given
the circumstances under consideration, e.g., status of the bank as
a third party
accused of no wrongdoing, ownership of the bank by a foreign
government, and the
district court's finding that the bank acted in good faith with
respect to
efforts to comply with the subpoena). However, foreign governments
strongly
object to such subpoenas, contending that they constitute an
improper exercise
of United States jurisdiction. Though the issue has arisen in
connection with
corporate entities, these concerns are equally applicable to a
subpoena directed
at an individual where the demanded production of evidence located
in the
territory of another country would violate that country's laws.
- Since the use of unilateral compulsory measures can adversely
affect the
law enforcement relationship with the foreign country, all federal
prosecutors
must obtain written approval through OIA before issuing any
subpoenas to persons
or entities in the United States for records located abroad. The
request must
be in writing and set forth:
- The subject matter and nature of the grand jury
investigation or trial;
- A description of the records sought including their location
and identifying
information such as bank account numbers;
- The purpose for which the records are sought and their
importance to the
investigation or prosecution;
- The extent of the possibility that the records might be
destroyed if the
person or entity maintaining them becomes aware that they are being
sought; and
- Any other information relevant to OIA's determination.
In emergencies, OIA can act on the basis of an oral request
containing the
above information. In such instances, if OIA concurs in the
issuance of a
subpoena, the oral request must be followed by a written request.
The following considerations will be taken into account in
determining
whether such a subpoena should be authorized:
- The availability of alternative methods for obtaining the
records in
a timely manner, such as use of mutual assistance treaties, tax
treaties or
letters rogatory;
- The indispensability of the records to the success of the
investigation or
prosecution; and
- The need to protect against the destruction of records
located abroad and
to protect the United States' ability to prosecute for contempt or
obstruction
of justice for such destruction.
OIA must also be consulted prior to initiating enforcement
proceedings
relating to such subpoenas.
Finally, OIA's concurrence must be obtained prior to serving
a subpoena ad
testificandum on an officer of, or attorney for, a foreign bank or
corporation
who is temporarily in or passing through the United States when the
testimony
sought relates to the officer's or attorney's duties in connection
with the
operation of the bank or corporation.
[cited in Criminal Resource Manual 274; Criminal Resource Manual 285; USAM 9-13.520; USAM 9-13.525] | |