In re Request for Judicial Assistance

• Decision Date: 25 March 1987
• Docket Number: No. 86-1102-CIV.,86-1102-CIV.
• Citation: 669 F. Supp. 403
• Parties: In re LETTER OF REQUEST FOR JUDICIAL ASSISTANCE FROM the TRIBUNAL CIVIL DE PORT-AU-PRINCE, REPUBLIC OF HAITI.
• Court: U.S. District Court — Southern District of Florida

669 F. Supp. 403

In re LETTER OF REQUEST FOR JUDICIAL ASSISTANCE FROM the TRIBUNAL CIVIL DE PORT-AU-PRINCE, REPUBLIC OF HAITI.

No. 86-1102-CIV.

United States District Court, S.D. Florida, Civil Division.

March 25, 1987.

Jeffrey Weissman & Sparber, Shevin, Shapo & Heilbronner, P.A., Norman Chirite, Miami, Fla., for plaintiff.

Gary Dumas, Stroock & Stroock & Lavan, Miami, Fla., for defendant.

ORDER DENYING INTERVENOR'S MOTION TO VACATE ORDER AND GRANTING MOTION TO MODIFY SUBPOENA DUCES TECUM

EDWARD B. DAVIS, District Judge.

THIS MATTER is before the Court on Intervenor FRANTZ MERCERON'S ("MERCERON") Motion to Vacate and Set Aside Order Appointing Commissioner and to Quash or Modify Subpoena Duces Tecum. MERCERON and Counsel for the Government of Haiti have filed extensive memoranda of law, affidavits, and other documents related to this cause, and the Court has held two hearings on the same. For the reasons listed below, this Court finds that MERCERON'S arguments in support of its Motion to Vacate or Set Aside the Order Appointing the Commissioner lack merit, but agrees with MERCERON'S contention that the Subpoena Duces Tecum should be modified.

Background

Former President-for-Life Jean-Claude Duvalier fled the Republic of Haiti ("Haiti") on February 7, 1986, along with several of his close associates and friends. On April 17, 1986, the prosecuting attorney, in accordance with Haitian law and the dictates of the successor government, filed a Complaint with the Tribunal. The Complaint accuses members of the former regime and the Duvalier family of crimes ranging from corruption of public officials to embezzlement, and claims they transferred the tainted funds abroad. A juge d'instruction, or magistrate, investigates the case, and eventually decides whether any of the accused should be criminally prosecuted.

As part of the investigation, the juge sent a Letter of Request, pursuant to 28 U.S.C. Section 1782, to the United States District Court for the Southern District of Florida to allow it to subpoena documents and obtain information relevant to the inquiry. On June 13, 1986, this Court entered an Order appointing Stroock & Stroock & Lavan ("Stroock") as Commissioner to conduct the discovery in accordance with the Request. On July 7, 1986, the Clerk of the Court, acting on Stroock's request, issued a subpoena to the Vice President of Bank of Boston International South ("the Bank"), requesting the production of documents concerning any of the individuals and companies subject to the investigation. Among these individuals was MERCERON, former Minister of Finance for the Duvalier Government. The Bank subsequently complied with the Request; MERCERON was never notified.

At issue in this proceeding is a November 6, 1986 request for production of MERCERON'S bank records from Commissioner Stroock to the Bank. Two of the transactions about which information is sought predate MERCERON'S involvement in the Government. On December 9, 1986, MERCERON moved to vacate the Order Appointing Commissioner and to Quash the Subpoena on the grounds that: (1) the discovery sought is not for "use in a foreign or international tribunal" within the meaning of 28 U.S.C. Section 1782; (2) the Tribunal's investigation lacks appropriate safeguards traditionally associated with judicial or quasi-judicial proceedings; (3) the subpoena was issued for a purpose not permitted by 28 U.S.C. Section 1782; (4) Stroock is disqualified from acting as Commissioner in that it has a "personal interest" in the recovery of Haitian assets; (5) the subpoena infringes MERCERON'S rights under federal and/or Florida law; (6) Haitian law does not allow the production of bank records in this case; and (7) the subpoena is overbroad.

Legal Discussion

Section 1782(a) provides in pertinent part that:

The District Court of the district in which a person resides or is found may order him to give his testimony or statement or to provide a document or other thing for use in a proceeding in a foreign or international tribunal. The order may be made pursuant to a letter rogatory issued, or request made by a foreign or international tribunal or upon the application of any interested person and may direct that the testimony or statement be given or the document or other thing be produced, before a person appointed by the court....

1. Discovery Request Made by a Tribunal

Materials sought pursuant to 28 U.S.C. Section 1782(a) must be discovered "for use in a foreign or international tribunal." MERCERON asserts that a juge d'instruction is merely an investigatory body, not a tribunal entitled to assistance under Section 1782(a). In re Letters of Request to Examine Witness From the Court of Queen's Bench for Manitoba, Canada, 59 F.R.D. 625 (N.D.Cal.), aff'd per curiam, 488 F.2d 511 (9th Cir.1973) (discovery for an investigation unrelated to a judicial or quasi-judicial controversy not permitted under Section 1782(a)). However, the legislative history behind Section 1782(a) is clear that judicial assistance extends to proceedings before foreign administrative and quasi-judicial tribunals and investigating magistrates. H.R.Rep. No. 1052, 88th Cong., 2nd Sess. (1963), S.Rep. No. 1580, 88th Cong., 2nd Sess., U.S.Code Cong. & Admin.News 1964, p. 3782 (1963). In fact, Section 1782 was amended in 1964 to specifically afford assistance to investigating matistrates. Id. Section 1782 has also been used to assist foreign tribunals presiding over criminal proceedings. See In re Request for Judicial Assistance From Seoul Dist. Criminal Court, Seoul, Korea, 555 F.2d 720 (9th Cir.1977); In re Letters Rogatory From Dist., Tokyo, Japan, 539 F.2d 1216 (9th Cir.1976); In re Letter Rogatory From Justice Court, Dist. of Montreal, Canada, 523 F.2d 562 (6th Cir.1975).

A juge d'instruction represents neither the interest of the police nor that of the state prosecutors. In re Letters Rogatory Issued by the Director of Inspection of the Government of India, 385 F.2d 1017, 1020 (2d Cir.1967). Nevertheless, MERCERON claims that the juge d'instruction in this case is acting under the direction of the current Haitian Government, and is not an independent adjudicator entitled to judicial assistance under Section 1782(a). See e.g., Fonseca v. Blumenthal, 620 F.2d 322, 323-324 (2d Cir.1980), contra, In re Request for Assistance for Assistance From Ministry of Legal Affairs of Trinidad and Tobago, 648 F.Supp. 464 (S.D.Fla.1986). The material before this Court indicates that the Haitian juge d'instruction is empowered to evaluate from the evidence he receives whether or not there is sufficient evidence to proceed further against MERCERON and the others who are the subject of the criminal investigation being conducted in Haiti. Thus, he falls within the purview of Section 1782. This Court also finds persuasive the recent opinion of Judge Palmieri of the Southern District of New York, holding that the Haitian Tribunal and its juge are the type of quasi-judicial entity and presiding individual entitled to receive judicial assistance under 28 U.S.C. Section 1782. In re Letter of Request for Judicial Assistance from the Tribunal Civil de Port-Au-Prince, Republic of Haiti, Misc. No. M19-113 (June 27, 1986).

2. Procedural Fairness of the Tribunal's Investigation

The legislative history of Section 1782 provides that a Court should "take into account the nature and attitudes of the Government of the country from which the request emanates ..." in exercising its discretionary power under Section 1782. 1964 U.S.Code & Ad.News at 3788. Evidence in the record indicates that the proceedings in Haiti may lack certain procedural protections over the rights of the accused. However, this Court will not engage in advisory opinions. The Haitian Tribunal is empowered by the same Code which has governed Haitian criminal procedure since before the Duvalier family took power. Should the juge decide that prosecution of MERCERON is appropriate, MERCERON may then contest the Haitian judicial procedures.

3. Subpoena Issued For Improper Purpose

MERCERON asserts that it is inappropriate to seek customer bank records under the guise of a Section 1782 request for evidence in criminal proceedings in Haiti, when the underlying purpose is to attempt to recover these assets in federal and state actions. No civil suit is currently pending against MERCERON in the United States. Thus, this Court finds premature and speculative MERCERON'S claim that the subpoena should be quashed because Stroock subpoenaed his bank records with the intent to locate assets in the United States that will be subject to civil actions. Again, MERCERON may raise these objections if and when someone does institute such litigation. See e.g., Matter of Grand Jury Subpoena Duces Tecum, 520 F.Supp. 253, 255 (S.D.Tex.1981) (objection based on possible use of subpoena should be raised only if and when a civil suit is brought); and U.S. v. (Under Seal), 714 F.2d 347, 351 (4th Cir.), cert. denied, 464 U.S. 978, 104 S.Ct. 1019, 78 L.Ed.2d 354 (1983) (a court will generally refuse to quash a subpoena when motion to suppress may be raised in a potential later civil proceeding).

4. Disqualification of Commissioner Stroock

The legislative purpose of 28 U.S.C. Section 1782 is to assist foreign tribunals in resolving foreign disputes. MERCERON contends that Stroock should not serve as Commissioner because Stroock has a personal interest in the recovery of assets purportedly embezzled from Haiti through civil actions commenced in the United States, because Stroock is contractually entitled to receive a percentage of all such assets. This argument is unpersuasive in light of this Court's recent ruling that even where the party requesting judicial assistance is an "interested party" and not entirely "neutral," the grant of assistance under Section 1782 is appropriate. In re Request for Assistance from Ministry of Legal Affairs of Trinidad and Tobago, 648 F.Supp. 464 (...