Letter Rogatory from Justice Court, Dist. of Montreal, Canada, In re

• Decision Date: 25 September 1975
• Docket Number: No. 75-1004,75-1004
• Citation: 523 F.2d 562
• Parties: . Appeal of John FECAROTTA. United States Court of Appeals, Sixth Circuit
• Court: U.S. Court of Appeals — Sixth Circuit

Page 562

523 F.2d 562

In re LETTER ROGATORY FROM the JUSTICE COURT, DISTRICT OF MONTREAL, CANADA Appeal of John FECAROTTA.

No. 75-1004.

United States Court of Appeals Sixth Circuit.

Argued June 5, 1975.

Decided Sept. 25, 1975.

Michael S. Friedman, Troy, Mich., for appellant.

John L. Newcomer, Sp. Atty., Detroit, Mich., Bruno A. Ristau, Atty., Civ.. Div., Dept. of Justice, Washington, D. C., for appellee.

Before McCREE and MILLER, Circuit Judges, and TAYLOR, ^* District Judge.

WILLIAM E. MILLER, Circuit Judge.

Appellant, John Fecarotta, a resident of Detroit, challenges the district court's refusal to quash a subpoena duces tecum it had directed to the appellant's bank in On August 19, 1974, the Justice Court of Sessions of the Peace, District of Montreal, Canada, ordered that a letter rogatory ¹ be sent to the appropriate United States authorities requesting the production of all bank account records listed in the names of John Fecarotta and/or Juanita Fecarotta held by the Detroit Bank and Trust Company. John Fecarotta had been charged with a violation of the Narcotic Control Act of Canada, and the prosecution sought access to his bank records in connection with the prosecution of the alleged offense. The Justice Court requested the assistance of our country's federal courts only after it had been satisfied that the bank account information was necessary to the prosecution's case. Upon receipt of the letter rogatory, the Department of Justice made application to the District Court for the Eastern District of Michigan for an order to compel the bank to produce the documents sought by the foreign tribunal. On September 5, 1974, the district court accepted the letter rogatory and, under the authority of 28 U.S.C. § 1782, ² issued a subpoena duces tecum to officers of the Detroit Bank and Trust Company. The subpoena commanded the bank's officials to appear with the records in question to be deposed concerning their contents. Fecarotta was notified of the date of the taking of the deposition and he immediately sought to quash the subpoena on the grounds that § 1782 is not applicable to criminal prosecutions or in the alternative, that the court in its discretion could and should refuse to grant the subpoena because of the danger that the information might be used improperly in the Canadian trial. This motion was overruled and the subpoena was ordered to be issued. Pending appeal to this Court, the production order has been stayed.

Detroit. The subpoena was in response to a request by a Canadian tribunal for judicial assistance in a pending criminal prosecution against appellant.

At the outset, the government insists that appellant lacks standing to challenge the subpoena to obtain the records since they are the property of the bank in which appellant has no proprietary interest. Although it is well-established that records of account belong to the bank and that a depositor may not prevent their disclosure on fourth or fifth amendment grounds, see California Bankers Association v. Shultz, 416 U.S.

21, 94 S.Ct. 1494, 39 L.Ed.2d 812 (1974); Donaldson v. United States, 400 U.S. 517, 91 S.Ct. 534, 27 L.Ed.2d 580 (1971); United States v. Continental Bank & Trust Co., 503 F.2d 45 (10th Cir. 1974), it does not follow that appellant lacks standing to challenge the district court's power to issue a subpoena under the terms of an authorizing statute.

While it has been held that federal courts have inherent power to issue and respond to letters rogatory, see United States v. Reagan, 453 F.2d 165, 173 (6th Cir. 1971); United States v. Staples, 256 F.2d 290, 292 (9th Cir. 1958); In re Pacific Ry. Comm'n, 32 F. 241, 256-57 (C.C.N.D.Cal.1887), such jurisdiction has largely been regulated by congressional legislation. Where Congress has intervened, the scope of the congressional authorization necessarily limits and defines the judicial power to render and seek such assistance. Thus a party against whom the requested information is to be used has standing to challenge the validity of such a subpoena on the ground that it is in excess of the terms of the applicable statute, here 28 U.S.C. § 1782. We hold that Fecarotta has standing to challenge the validity of the subpoena on the theory that it is not authorized by § 1782, the governing statute.

We turn to the appellant's contention that § 1782 does not authorize or permit the compulsory production of evidence for use in a foreign criminal proceeding. Traditionally, the United States has enacted statutes to provide judicial assistance for courts in other countries. (For terms of successive enactments, see attached appendix.) The original enactment authorizing federal courts to assist foreign tribunals was the Act of March 2, 1855. ³ This statute granted broad powers to the United States courts to compel the testimony of witnesses to assist foreign courts. Apparently its passage was initiated to aid a French court in a criminal proceeding. Jones, International Judicial Assistance: Procedural Chaos and a Program for Reform, 62 Yale L.J. 515, 541 (1953). Primarily because of misindexing, the Act passed into obscurity and later was crippled by a subsequent statute. Id. at 540.

This country's early begrudging attitude in granting assistance to foreign courts was evidenced by the Act of March 3, 1863, ⁴ a law that largely undercut the 1855 legislation. The 1863 Act permitted the federal courts to take testimony (only in suits) "for the recovery of money or property depending in any court in any foreign country with which the United States are at peace, and in which the government of such foreign country shall be a party or shall have an interest. . . . ⁵" It was not until 1948 that the requirement that the foreign government be a party or have an interest was deleted. The 1948 amendment also expanded the statute to encompass "Any civil action pending in any court in a foreign country." ⁶ (emphasis added). One year later the restrictive phrase "civil action" was changed to read "Any judicial proceeding pending in any court The narrow scope of these statutes was underscored and reinforced by the decisions of federal courts. For instance in Janssen v. Belding Corticelli, Ltd., 84 F.2d 577 (3rd Cir. 1936), the court declared that the only power it had regarding letters rogatory was that granted to it by the Constitution or by statute. Under the statutes then in force, the district court could neither issue a subpoena duces tecum to secure documentary evidence nor could it conduct a "roving oral examination" of the witnesses in the absence of interrogatories. Id. at 579. ⁸ Additionally, the courts have not favored the use of letters rogatory to secure evidence for introduction in criminal cases or investigations. See In Re Letters Rogatory From Examining Magistrate of Tribunal of Versailles, France, 26 F.Supp. 852 (D.Md.1939); In Re Letters Rogatory From First District Judge of Vera Cruz, 36 F. 306 (C.C.S.D.N.Y.1888); Jones, supra at 541. The lower court in the present case stated in its opinion that neither party nor the court itself could locate a reported decision granting a subpoena in a criminal case. In Re Letter Rogatory from the Justice Court, District of Montreal, Canada, 383 F.Supp. 857, 858 (E.D.Mich.1974).

                in a foreign country."  7 (emphasis added)
                

The 1964 amendments, however, were a significant departure by Congress from its cautious approach to international judicial assistance over the past century. The revisions were the result of proposals submitted by the Commission on International Rules of Judicial Procedure. Congress created the Commission in 1958 and authorized it to study and evaluate all the federal code provisions and rules, both civil and criminal, relating to international judicial assistance. The goal of the Commission was to revise the law in order to provide "(w)ide judicial assistance . . . on a wholly unilateral basis." Amram, New Developments in International Judicial Assistance in the United States of America, 32 J.B. Ass'n of D.C. 24, 28 (1965). As the legislative history reveals, the purpose behind the proposals was to prod other nations into following the lead of the United States in expanding procedures for the assistance of foreign litigants. S.Rep. No. 1580, 1964 U.S.Code Cong. & Admin.News, p. 3783. The current § 1782 represents in part the changes made by the 1964 amendments.

The crucial issue on this appeal is whether § 1782 applies to documentary evidence sought for use in a foreign criminal proceeding. Noting that the statute's predecessors were not thought to cover criminal cases, the appellant argues that § 1782 neither expressly nor impliedly applies to the instant situation. We are convinced, however, that Congress clearly intended for the provision to extend this nation's assistance to the criminal processes of a foreign country. First, we believe that the ever-expanding reach of our laws on the subject is meaningful. This evolutionary process has extended progressively from suits "for the recovery of money or property," to "any civil action," to "any judicial proceeding," and finally, to "a proceeding in a foreign or international tribunal." These changes have made the statute increasingly less restrictive and thus have evidenced the intent of Congress that the assistance be available to foreign governments in a greater number of instances. Also noteworthy is the use of the word "tribunal" in place of "court." The reason for the change was the belief that "assistance should be available, in the court's discretion, in connection with criminal proceedings abroad before investigating magistrates and in connection with administrative and quasi-judicial proceedings abroad. (see Senate Report pages 7-8)" Amram In his remaining argument, Fecarotta maintains that any testimony taken under § 1782 and later introduced against him at trial would contravene his right of confrontation under the sixth amendment. The letter...