Fonseca v. Blumenthal, 526
| Decision Date | 21 February 1980 |
| Docket Number | D,No. 526,526 |
| Citation | 620 F.2d 322 |
| Parties | Jose A. FONSECA, Plaintiff-Appellant, v. W. Michael BLUMENTHAL, Secretary of the Treasury of the United States, et al., Defendants-Appellees. ocket 79-6174. |
| Court | U.S. Court of Appeals — Second Circuit |
Edward S. Rudofsky, New York City (Zane & Teitler, and Axelrod & Warburgh, New York City, on the brief), for plaintiff-appellant.
Ralph L. McMurry, Asst. U.S. Atty., Brooklyn, N.Y. (Edward R. Korman, U.S. Atty., and Miles M. Tepper, Asst. U.S. Atty., Brooklyn, N.Y., on the brief), for defendants-appellees.
Before KAUFMAN, Chief Judge, and SMITH and TIMBERS, Circuit Judges. *
Appellant, Jose A. Fonseca, commenced this action in the Eastern District of New York to recover a suitcase containing $250,000 in United States currency. He alleged that the suitcase had been misdirected by an airline to JFK Airport in New York while Fonseca was traveling from Bogota, Colombia to Lima, Peru. The suitcase was seized by the United States Customs Service in New York.
While the action was pending, the Superintendent of Exchange Control of the Republic of Colombia requested that the suitcase and its contents be delivered to him for examination in connection with an investigation to determine if Fonseca had violated Colombian laws governing exchange control. The United States Attorney for the Eastern District of New York moved for a court order that the suitcase be delivered to the Superintendent pursuant to 28 U.S.C. § 1782 (1976) which provides in relevant part:
Fonseca in the meanwhile moved for an order directing the government to return the suitcase and money to him.
An evidentiary hearing was held to determine the status and function of the Superintendent of Exchange Control under Colombian law. The district court thereafter ordered that the suitcase and its contents be delivered to the Superintendent pursuant to § 1782, and dismissed Fonseca's complaint. Fonseca has appealed from the district court's order.
We find that the dispositive issue on appeal is whether the Superintendent is a "tribunal" within the meaning of § 1782. We hold that he is not.
The term "tribunal" as it is used in § 1782 was first construed by our Court in In re Letters Rogatory Issued by Director of Inspection of Government of India, 385 F.2d 1017 (2 Cir. 1967) (Friendly, J.), where the legislative history of the section was fully considered. Id. at 1018-21.
Earlier statutes designed to provide judicial assistance in foreign proceedings had authorized the district court to take the deposition of a witness for use in a "suit for the recovery of money or property (pending) in any court in any foreign country", 12 Stat. 769 (1863), "in any civil action pending in any court in a foreign country", 62 Stat. 949 (1948), and in any "judicial proceeding" pending in any court in a foreign country, 63 Stat. 103 (1949).
In 1964, § 1782 was amended to provide for obtaining testimony or documents for use "in a proceeding in a foreign or international tribunal." The word "tribunal" was used deliberately "to make it clear that assistance is not confined to proceedings before conventional courts . . . (but extends to) proceedings before a foreign administrative tribunal or quasi-judicial agency as in proceedings before a conventional foreign court." H.R.Rep. No. 1052, 88th Cong., 1st Sess. 9 (1963); S.Rep. No. 1580, 88th Cong., 2d Sess.; (1964) U.S.Code Cong. & Ad.News 3782, 3788, quoted in In re Letters Rogatory (India), supra, 385 F.2d at 1019.
As we pointed out in India, "(w)hile Congress materially expanded the scope of 28 U.S.C. § 1782 in 1964, it did not go to the full extent of authorizing a district court to execute letters rogatory whenever requested by a foreign country or a party there. . . ." In re Letters Rogatory (India), supra, 385 F.2d at 1020. It is evident that Congress intended "tribunal" to have an adjudicatory connotation.
We also observed in India that one concern of Congress in amending § 1782 in 1964 was to insure judicial assistance for French juges d'instruction. The juge is roughly equivalent to our grand jury. It is he who determines whether evidence against an individual charged with a major crime is sufficient to require him to stand trial. Id.
Although the juge directs the investigation, he represe...
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