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Assisting Foreign Prosecutors
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Judicial assistance is a two-way street. To ensure that
international
cooperation operates smoothly, the United States Attorney (USA)
must execute
promptly all requests for judicial assistance that are forwarded
from the Office
of International Affairs (OIA). (Requests for assistance in civil
cases are
transmitted by the Civil Division's Office of Foreign Litigation).
Some foreign prosecutors and police transmit requests in
criminal matters
to USAs directly, or indirectly through investigative agencies.
Because
execution of such requests may undercut Departmental policies
(e.g., where the
Department is encountering difficulties with a particular foreign
government),
all such requests should be discussed with OIA before execution.
Where execution of foreign requests for assistance requires
compulsory
process, OIA provides instructions and sample forms for securing a
"commission"
(i.e., the "commission procedure") in the letter transmitting the
request to the
district. The instructions vary depending on whether the request
is a letter
rogatory or a treaty request. Letters rogatory are executed
pursuant to and in
accordance with 28 U.S.C. § 1782. Treaty requests rely on the
§ 1782
commission procedure but are not restricted by limitations
contained in §
1782 to the extent that the treaty's scope is broader. See,
e.g.,
United States v. Erato, 2 F.3d 11 (2d Cir. 1993).
In general, the commission procedure involves filing an
application with
the district court seeking appointment as a commissioner under 28
U.S.C. §
1782. Normally, the Assistant United States Attorney (AUSA)
requests that the
court appoint him or her as commissioner. The AUSA may also
request that the
court appoint one or more co-commissioners, such as a foreign judge
or police
officer who travels to the United States to participate in
execution of the
request. Once appointed, the commissioner may issue "commissioner"
subpoenas
requiring the production of records or the attendance of witnesses
at
depositions.
Depositions will be conducted pursuant to the Federal Rules of
Civil
Procedure unless the order specifies alternative procedures
(see 28 U.S.C.
§ 1782; Rule 15(d), F.R. Crim. P.). For example, to the extent
that the
Federal Rules of Civil Procedure require notice and the request
seeks secrecy,
the application and proposed Order must specify that the notice
provisions of the
Federal Rules of Civil Procedure will not apply. In taking a
deposition with no
foreign authorities present, the commissioner asks the questions
set forth in the
request for assistance. The commissioner should also ask
appropriate follow-up
questions. If a foreign judge, attorney or police official wishes
to attend the
deposition and participate, he or she may do so. Even where such
attendance is
provided for by a self-executing provision of an applicable treaty,
the order
appointing the commissioner should specify that foreign officials
and/or
attorneys (described by title, not name) may attend and
participate. The
commissioner should conduct the deposition, in accordance with the
order,
allowing participation by the foreign authority designed to secure
the assistance
requested. Witnesses may invoke any applicable privilege, domestic
or foreign;
however, under certain treaties, claims of foreign privileges are
reserved for
disposition in the requesting state. Witnesses may be represented
by counsel;
however, witnesses have no right to appointed attorneys. A witness
is usually
required to sign the deposition, which should be certified by the
commissioner
and returned to OIA, together with a copy of the request.
Costs of executing requests (including court reporter's fees)
are the
responsibility of the country making the request, unless an
applicable treaty
requires the United States to pay for costs of execution; in that
event, the
United States AttorneyĆ¾s Office (USAO) pays the costs. Expenses
chargeable to
the requesting state are generally paid by the Embassy of the
country making the
request after receipt of an invoice from the provider of the
service. Where the
foreign country is responsible for costs of execution, the USAO
should avoid
becoming the guarantor for payment (i.e., allow the foreign
authorities to
contract for the service, including arrangement for payment).
Some requests may require investigative assistance (e.g., the
witness's
current address for service of a commissioner's subpoena, service
of a
commissioner's subpoena on a business and collection of the records
sought). In
such instances, the commissioner may draw on the resources of
Federal
investigative agencies. Generally, the Federal Bureau of
Investigation will
assist in executing foreign requests, although where other law
enforcement
agencies have a pre-existing interest in the subject matter of the
request, the
assistance of those agencies will be sought.
Not all requests require a commissioner for execution (i.e.,
a commission
is required only if compulsory measures are necessary to execute a
request). For
example, if a witness will cooperate voluntarily, there is no need
for a
commissioner's subpoena or a commissioner. See 28 U.S.C.
§ 1782(b).
However, when foreign officials are travelling to the United States
to
participate in depositions a commission should be secured and even
cooperating
witnesses should receive a subpoena to appear and testify or
produce evidence.
In other situations, consult with OIA about less formal means of
executing the
foreign request.
[cited in USAM 9-13.540] | |