Request for Assistance from Ministry of Legal Affairs of Trinidad and Tobago, In re

• Citation: 848 F.2d 1151
• Decision Date: 07 July 1988
• Docket Number: No. 86-6011,86-6011
• Parties: In re REQUEST FOR ASSISTANCE FROM MINISTRY OF LEGAL AFFAIRS OF TRINIDAD AND TOBAGO Petition of Joseph AZAR.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1151

848 F.2d 1151

In re REQUEST FOR ASSISTANCE FROM MINISTRY OF LEGAL AFFAIRS

OF TRINIDAD AND TOBAGO

Petition of Joseph AZAR.

No. 86-6011.

United States Court of Appeals, Eleventh Circuit.

July 7, 1988.

Jeffrey H. Kay, Ft. Lauderdale, Fla., Jon May, Miami, Fla., for appellant.

Theodore Klein, Fine, Jacobson, Schwartz, et al., Joanne M. Rose, Miami, Fla., for amicus curiae.

Leon B. Kellner, U.S. Atty., David Lichter, Jeanne M. Mullenhoff, Linda Collins Hertz, Andrea M. Simonton, Asst. U.S. Attys., Miami, Fla., for appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before FAY and VANCE, Circuit Judges, and HOFFMAN ^*, Senior District Judge.

FAY, Circuit Judge:

Joseph Azar challenges the district court's refusal to quash a subpoena that it had directed at Azar's bank, the Union Bank of Florida. The district court issued the subpoena pursuant to 28 U.S.C. Sec. 1782(a) (1982) ¹, in response to a request by the Attorney General and Minister of Legal Affairs in Trinidad and Tobago ("Minister of Legal Affairs"). This appeal presents an issue of first impression--whether section 1782 requires that a proceeding be pending before a federal court may grant judicial assistance to a foreign official. We hold that 28 U.S.C. Sec. 1782 does not impose such a requirement and affirm.

I. BACKGROUND

On December 31, 1985, the Minister of Legal Affairs of Trinidad and Tobago asked the United States Attorney General to help obtain authenticated copies of the bank records of Joseph Azar. The Minister of Legal Affairs sought the records in connection with a criminal investigation of Trinidad and Tobago nationals involved in violations of the Exchange Control Act. See Ch. 79:50 Laws of Trinidad and Tobago. The Department of Justice moved the district court to issue a subpoena for the records under section 1782. On July 11, 1986, the district court granted the ex parte request for a subpoena of the bank records. Azar immediately sought to quash the subpoena on the grounds that section 1782 requires that a proceeding be pending in the foreign country. After carefully scrutinizing the request, the district court denied the motion to quash. In re Request for Assistance from Ministry of Legal Affairs of Trinidad and Tobago, 648 F.Supp. 464 (S.D.Fla.1986). This appeal followed.

II. HISTORY

To aid us in resolving the issues presented by this case, we must first consider the history of section 1782. The Act of March 2, 1855 first authorized federal courts to assist foreign tribunals. ² This statute granted federal courts the power to compel the testimony of witnesses in order to assist foreign courts. In re Letter Rogatory from the Justice Court, District of Montreal, Canada, 523 F.2d 562, 564 (6th Cir.1975). The passage of the Act of March 3, 1863, however, soon restricted this first statute. ³ The 1863 Act allowed the United States courts to obtain testimony to assist foreign courts only if such testimony was for use in suits (1) which pertained to the recovery of money or property, (2) which were pending in a foreign country with which the United States was at peace, and (3) in which the government of the foreign country was a party or had an interest. This 1863 statute, with its limitations, remained relatively unchanged until 1948.

Beginning in 1948, Congress enacted several amendments that broadened the scope of the statute. The 1948 amendment deleted the requirement that the foreign government be a party or have an interest in the suit. ⁴ Congress also changed the limitation that the "suit [be] for the recovery of money or property" and eventually only required that the action be a "judicial proceeding." See Act of May 24, 1949, ch. 139, Sec. 93, 63 Stat. 103. During this time, however, Congress retained the requirement that the judicial proceeding be pending in a foreign country with which the United States was at peace.

In 1964, Congress enacted the most recent amendments to section 1782. These modifications marked a significant departure from Congress' cautious approach to international judicial assistance. Letter Rogatory from Montreal, Canada, 523 F.2d at 565. Congress adopted, without objection, a set of proposals submitted by the Commission on International Rules of Judicial Procedure which revised section 1782. ⁵ The legislative history shows that the purpose behind the proposals was to encourage other nations to follow the lead of the United States and to adjust their procedures in order to improve practices of international cooperation in litigation. ⁶

These amendments broadened section 1782's ability to provide assistance in several ways. First, while the previous incarnations of section 1782 only allowed a district court to assist in the taking of depositions and testimony, the 1964 changes enabled federal courts to assist in obtaining documents and other tangible evidence. Second, to permit district courts to assist in proceedings before foreign investigating magistrates and administrative decision-makers, Congress only required that the evidence be for use in a "foreign tribunal" rather than for use in a "court." ⁷ Third the 1964 amendments allowed, for the first time, an "interested person" as well as a foreign tribunal to request judicial assistance. The legislative history stated that an "interested person" can be a "person designated by or under a foreign law, or a party to the foreign or international litigation." 1964 U.S.Code Cong. & Admin.News at 3789. Hans Smit, the reporter to the Commission that drafted the proposals which Congress adopted, stated that the term "interested person" included foreign officials as well as actual litigants. Smit, supra note 5, at 1027. Finally, Congress replaced the requirement that the assistance must be for use in "any judicial proceeding pending in any court in a foreign country" with the requirement that the assistance be used "in a proceeding in a foreign or international tribunal." This change dropped the word "pending" from the statute. ⁸

In sum, the history of section 1782 reflects a congressional desire to increase the power of district courts to respond to requests for international assistance. In re Letters Rogatory from the Tokyo District, Tokyo, Japan, 539 F.2d 1216, 1218 (9th Cir.1976). The purpose of the 1964 amendments was to broaden prior law and permit federal courts to assist bodies of a quasi-judicial or administrative nature and foreign investigating magistrates. Through these amendments, Congress reaffirmed the inherent authority of the United States courts to grant international judicial assistance. See 1964 U.S.Code Cong. & Admin.News at 3785. By taking the initiative in foreign cooperation, Congress also attempted to stimulate reciprocity. John Deere Ltd. v. Sperry Corp., 754 F.2d 132, 135 (3rd Cir.1985). Finally, Congress left the district court with the discretion to decide whether to honor requests for assistance. Letters Rogatory from Tokyo, Japan, 539 F.2d at 1219.

III. ANALYSIS

Since Congress has given the district courts broad discretion in granting judicial assistance to foreign countries, we may overturn a district court's grant of such assistance only if it is an abuse of discretion. See In Re Request for Judicial Assistance from the Seoul District Criminal Court, Seoul, Korea, 555 F.2d 720, 724 (9th Cir.1977); see also United States v. Silverman, 745 F.2d 1386, 1397 (11th Cir.1984) (district court must have abused its discretion to reverse an order sustaining a subpoena). Azar's principal contention is that section 1782 removes the district court's discretion to grant Trinidad and Tobago's Minister of Legal Affairs any assistance because section 1782 still requires that a proceeding currently be pending. Azar contends that the legislative history supports his view.

A. The Pending Requirement

Azar concedes that the 1964 amendments eliminated the word "pending" and broadened the ability of the district court to grant assistance. When the legislature deletes certain language as it amends a statute, it generally indicates an intent to change the meaning of the statute. United States v. Canadian Vinyl Industries, 555 F.2d 806, 810, 64 CCPA 97 (1977); 1A Singer, Sutherland Statutory Construction, Sec. 22.01 (4th Ed.1984). Indeed, when words of plain meaning are excised, the deletion of such language "almost compels the opposite result." Chertkof v. United States, 676 F.2d 984, 987 (4th Cir.1982). We believe that Congress' elimination of the word "pending" almost compels us to conclude the "opposite result"--that a pending proceeding is not absolutely necessary. We will not treat Congress' deletion of the word "pending" as a mistake or mere accident. Our belief is supported by Hans Smit who wrote, "It is not necessary, however, for the proceeding to be pending at the time the evidence is sought, but only that the evidence is eventually used in such a proceeding." Smit, supra note 5, at 1027.

The result of one Ninth Circuit case indicates that a pending proceeding is not always necessary to a grant of assistance. In Letters Rogatory from Tokyo, Japan, 539 F.2d 1216, the Tokyo District Prosecutor's Office asked the Tokyo District Court to request the assistance of a United States court in obtaining depositions for use "in criminal investigations and possible future criminal trials in Japan." Id. at 1217 (emphasis added). The Ninth Circuit overlooked the lack of any pending criminal proceeding and decided that, since the request was not " 'unrelated' to 'judicial or quasi-judicial controversies,' " it had to affirm the federal district court's grant of assistance. Id. at 1219. This decision demonstrates that the determination to grant assistance turns not on whether the proceeding is pending but on whether the requested evidence will likely be of use in a judicial proceeding.

Azar, however, points to the use of the term "litigant" in the legislative history to argue that Congress only...