238 F.3d 1312 (11th Cir. 2001), 00-11114, United Kingdon v United States

Docket Nº:00-11114.
Citation:238 F.3d 1312
Party Name:UNITED KINGDOM, requesting the assistance of the United States Government in securing documentary evidence in the case of Regina V. Olumbummi Wood, et. al., Frank Martin, Oladele Raji, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
Case Date:January 19, 2001
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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238 F.3d 1312 (11th Cir. 2001)

UNITED KINGDOM, requesting the assistance of the United States Government in securing documentary evidence in the case of Regina V. Olumbummi Wood, et. al., Frank Martin, Oladele Raji, Plaintiffs-Appellants,


UNITED STATES of America, Defendant-Appellee.

No. 00-11114.

United States Court of Appeals, Eleventh Circuit

January 19, 2001

        January 31, 2001

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[Copyrighted Material Omitted]

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        Appeals from the United States District Court for the Southern District of Florida. (No. 99-01562-CV-DTKH), Daniel T.K. Hurley, Judge.

        Before MARCUS, WILSON and MAGILL[*], Circuit Judges.

        MARCUS, Circuit Judge:

        Appellants Oladele Raji and Frank Martins appeal the district court's order declining to compel the disclosure of certain sensitive law enforcement documents possessed by the United States, including grand jury materials, work product, and wiretap information, all of which Appellants contend are relevant to their defense of a criminal prosecution in England. The United States agreed to produce certain records related to Appellants' prosecution, but refused to produce others. The district court found that the undisclosed documents are privileged or protected by statute, and that Appellants had failed to demonstrate a compelling need for them. Because the district court did not abuse its discretion in declining to order further disclosure of these documents, we affirm.


        The background to this appeal is relatively straightforward. Appellants are currently awaiting trial in England on criminal charges related to an alleged credit card fraud scheme.1 The indictment in that case alleges that Appellants participated in a conspiracy whose members used, in the United Kingdom, American Express credit card numbers that they had obtained from American co-conspirators. The American co-conspirators were tried in a separate proceeding before a federal district court in the Southern District of Florida following an investigation by the United States government (the "Ojomo prosecution").2

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        In January 1999, Appellants and a third defendant in the English proceeding, Olumbummi Woods, applied to Judge Elwen of the Crown Court-the judge presiding over the criminal trial-for the issuance of a letter rogatory seeking the disclosure of various materials related to the Ojomo prosecution. Judge Elwen granted the request, and accordingly issued two letters rogatory on behalf of the Appellants, dated February 8, 1999, and February 26, 1999, respectively. The letters asked the United States District Court for the Southern District of Florida to assist the three English criminal defendants by ordering agents of the United States government ("Government") and American Express to produce various materials gathered during and generated by the investigation giving rise to the Ojomo prosecution.

        Appellants then moved in the Southern District of Florida for discovery and inspection of the materials identified in the letters rogatory. In response, the Government agreed to produce voluntarily some of the requested materials, including grand jury and wiretap information. On July 20, 1999, the district court memorialized these voluntary disclosures in an order which lifted secrecy protections applicable to the wiretap and grand jury materials and thereby permitted the Government to disclose them. In addition, the district court authorized Appellants to take the deposition of Joan Ojomo, in connection with which the Government gave the British Crown Prosecution Service ("CPS") access to additional materials from the Ojomo investigation.

        Meanwhile, on or about August 23, 1999, the CPS, apparently pursuant to its discovery obligations under English law, served Appellants with a disclosure schedule prepared by the CPS and a British police constable after a visit to the offices of the U.S. Secret Service in Miami.3 That schedule inventoried several hundred files and boxes of unused investigative materials related to the Ojomo prosecution still in the possession of the United States. The listed materials are generally of three types: grand jury materials, work product (including written summaries and memoranda) of the local U.S. Attorney's Office and the Secret Service, and records of intercepted conversations obtained during the Ojomo investigation. It is these materials, not the items covered by the earlier requests, which are the subject of this appeal.

        Upon receipt of the CPS schedule, Appellants asked the district court to permit additional discovery. In an order dated October 4, 1999, the district court explained that it stood "ready to respond to any request issued by its sister court in Britain," but would only consider granting relief if Judge Elwen first issued such a request after determining that "the interests of justice would be served by additional discovery in the United States."

        Appellants then moved in the English court for additional discovery. Judge Elwen determined that the very fact that the items were listed on the CPS's disclosure schedule meant that these items satisfied the threshold test of "relevance or possible relevance" and therefore were discoverable under English law. Accordingly, on October 8, 1999, Judge Elwen ruled that Appellants were entitled to discovery of the items. In so doing, however, Judge Elwen emphasized that this ruling was "subject to any claim as to privilege, immunity, or otherwise as may be asserted by those with possession of the documents and upheld by the appropriate American judicial authority " (emphasis added).

        Citing this ruling and the February 1999 letters rogatory, Appellants, on October 19, 1999, filed a second motion with the

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district court, seeking an order compelling disclosure of the items. The district court referred the matter to a United States Magistrate Judge. The magistrate judge conducted a three-hour hearing on the matter, during which the magistrate judge and the parties considered in detail each of the several hundred items on the disclosure schedule. The Government agreed to disclose voluntarily certain of the requested materials, including wiretap applications, supporting affidavits, court orders authorizing wiretaps, and Secret Service interviews of persons arrested in the Ojomo prosecution. The Government did not, however, agree to produce all of the requested items. The Assistant United States Attorney responsible for the matter repeated an earlier representation that the Government's investigation and the requested materials did not relate to, mention, or incriminate the Appellants.

        On October 29, 1999, the magistrate judge issued a Report and Recommendation. In her report the magistrate judge ordered American Express to disclose certain account information relating to the Ojomo investigation, excluding work product and personal customer or proprietary information, and also recommended that the district court approve the Government's voluntary disclosures. Otherwise, however, the magistrate judge recommended against disclosure of the items on the disclosure schedule. She concluded that the grand jury and work product materials were privileged, implicitly finding as well that Appellants had not shown a sufficient basis to overcome the privilege. As for the records of intercepted conversations, she concluded that the federal wiretap statute, 18 U.S.C. § 2510, et seq., barred their disclosure, and that moreover Appellants had not shown a compelling need for them.

        Appellants filed a timely objection to the Report and Recommendation. On November 18, 1999, the district court affirmed the report and adopted its recommendations. The district court issued an amended order to the same effect on December 3, 1999, after considering Appellants' objections a second time. This appeal followed.


        As an initial matter, it is essential to clarify the laws or treaties by which Appellants may assert their entitlement to the materials in dispute. Appellants identify three sources for their entitlement to these materials: 28 U.S.C. § 1782; the Treaty Between the Government of the United States of America and the Government of the United Kingdom of Great Britain and Northern Ireland on Mutual Legal Assistance in Criminal Matters, S. Treaty Doc. No. 104-2 ("MLAT"); and the Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters. The United States agrees that § 1782 provides authority for the potential disclosure of the materials.4 It disputes, however, that the MLAT and the Hague Convention are implicated by this case. We agree.

        The MLAT in relevant part authorizes United States courts to give effect to certain requests made by the United Kingdom for information relevant to criminal investigations or prosecutions. See MLAT, art. 5, ¶ 1. The MLAT with the United Kingdom is one of a series of modern mutual legal assistance treaties negotiated by the United States in order to counter criminal activities more effectively. The MLAT provides for a broad range of cooperation in criminal matters, including (1) the taking of testimony or statements of witnesses; (2) the provision of documents, records, and evidence; (3) the service of legal documents; (4) the location or identification of persons; (5) the execution of requests for searches and seizures; and (6) the provision of assistance in proceedings relating to the forfeiture of the proceeds of crime and the collection of fines imposed as a sentence in a criminal prosecution. See Letter of Transmittal from the President of the United States to the

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Senate, Jan. 23, 1995. The MLAT is a self-executing treaty, and was in effect at the time this proceeding commenced.


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