In re Commissioner's Subpoenas, No. 02-10418.

• Decision Date: 31 March 2003
• Docket Number: No. 02-10418.
• Citation: 325 F.3d 1287
• Parties: In re: COMMISSIONER'S SUBPOENAS. United States of America, Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

325 F.3d 1287

In re: COMMISSIONER'S SUBPOENAS.

United States of America, Appellant.

No. 02-10418.

United States Court of Appeals, Eleventh Circuit.

March 31, 2003.

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Joseph A. Capone, Anne R. Schultz, Suzan H. Ponzoli, Miami, FL, Sara Criscitelli, U.S. Dept. of Justice/Office of Intern'l Affairs, Washington, DC, for Appellant.

Benedict P. Kuehne, Sale & Kuehne, P.A., Miami, FL, for Appellee.

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

Before EDMONDSON, Chief Judge, ANDERSON, Circuit Judge, and POGUE^*, Judge.

ANDERSON, Circuit Judge:

This case involves a request made by Canadian law enforcement authorities, pursuant to a mutual legal assistance treaty between Canada and the United States, for the legal assistance of the United States government in subpoenaing seven individuals residing in the Southern District of Florida. The Canadian authorities sought to interview these individuals in connection with an ongoing investigation into possible criminal activities. The subpoenas were initially issued, but upon a motion filed by the subpoenaed witnesses, the district judge quashed the subpoenas. The United States, on behalf of the Canadian authorities, appeals the district court's order quashing the subpoenas.

This case presents an issue of first impression for the federal appellate courts. We must ascertain whether this mutual legal assistance treaty between the two countries obligates the United States, at the request of Canada, to issue subpoenas to compel the testimony of witnesses in a criminal investigation prior to the filing of formal charges. Because we construe this Treaty to obligate both countries to execute requests for the issuance of subpoenas for purposes of compelling testimony in criminal investigations and to arrange for the taking of such testimony even prior to the actual initiation of formal charges, we hold that the Canadian request for assistance should have been granted and the subpoenas should not have been quashed by the district court.

I. BACKGROUND

A. The MLAT Between the United States and Canada

The Treaty Between the United States and Canada on Mutual Legal Assistance in Criminal Matters, Mar. 18, 1985, U.S.-Can., 24 I.L.M. 1092 ("MLAT" or "Treaty"), was signed at Quebec City, Canada on March 18, 1985, the advice and consent of the United States Senate was received on October 24, 1989, and the Treaty was entered into force on January 24, 1990. The Treaty obligates the two governments to provide "mutual legal assistance in all matters relating to the investigation, prosecution and suppression of offences." MLAT, art. II, ¶ 1. The MLAT with Canada is "one of a series of modern mutual legal assistance treaties being negotiated by the United States in order to counter more effectively criminal activities." Letter of Transmittal from Ronald Reagan, President of the United States, to the United States Senate, February 22, 1988, S. Exec. Rep. 100-14, 100th Cong., 2d Sess. (July 1985).

Traditionally, evidence sought by a foreign government had to be obtained through a process whereby a written request known as a "letter rogatory" was sent from the court of one country to the court of another asking the receiving court to provide the assistance. A federal statute authorizes federal district courts in this country to entertain such requests and provides that "[t]he district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation." 28 U.S.C. § 1782. Not only can a foreign tribunal bring a request in the form of a "letter rogatory," but section 1782 has been amended to also allow similar requests for assistance to be brought by "interested persons" including foreign governments in foreign investigations or proceedings and private litigants of a foreign proceeding. See id. ("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."). Requests for assistance initiated directly by an interested person rather than a foreign court are often referred to as "letters of request." Despite the apparent versatility of 28 U.S.C. § 1782, law enforcement authorities found the statute to be an unattractive option in practice because it provided wide discretion in the district court to refuse the request and did not obligate other nations to return the favor that it grants. MLATs, on the other hand, have the desired quality of compulsion as they contractually obligate the two countries to provide to each other evidence and other forms of assistance needed in criminal cases while streamlining and enhancing the effectiveness of the process for obtaining needed evidence. This MLAT between the United States and Canada provides for a broad range of cooperation in criminal matters.¹

Under this Treaty, Canada makes a request for assistance by contacting the United States' "Central Authority" under the Treaty, which is "the Attorney General or officials designated by him." See MLAT, art. I (Definitions). If the particular type of assistance requested requires action of a federal district court, the Attorney General and his officials utilize existing statutory authority including 28 U.S.C. § 1782 to bring an action seeking the requested evidence or information. Because the Attorney General simply utilizes the preexisting statutory authority provided under 28 U.S.C. § 1782 when satisfying treaty obligations under the MLAT, the Treaty itself is self-executing obviating the need for implementing legislation. See Letter of Transmittal from Pres. Reagan ("The Treaty is self-executing and utilizes existing statutory authority."); Letter of Submittal, Department of State, Feb. 11, 1988, S. Exec. Rep. 100-14, 100th Cong., 2d Sess. (July 1985) ("The Treaty will not require further implementing legislation and will utilize the existing authority of the Federal courts, particularly 28 U.S.C. 1782."). Upon its entry into force on January 24, 1990, the MLAT became a law of this land on par with a federal statute.

B. Factual Background

For the past several years, Canadian law enforcement authorities have been investigating an alleged smuggling operation. According to Canadian authorities, goods have been legally exported to the United States and then smuggled back into Canada without payment of the Canadian duty, resulting in a revenue loss for the Canadian government. The smuggling activities allegedly began in 1989. The United States began its own investigation. During the investigations, the two governments shared information and resources. Appellees in this case are seven individuals allegedly involved. After unsuccessfully attempting to conduct voluntary interviews with the seven appellees, the Canadian authorities turned to formal legal process.

C. Procedural Background

In 2000, Canadian authorities asked the United States for assistance. On February 22, 2001, the United States filed a petition in the United States District Court for the Southern District of Florida seeking an order appointing an assistant United States attorney as a "commissioner" to assist the Canadian government in obtaining the requested evidence. This request was made pursuant to the MLAT and 28 U.S.C. § 1782. On March 2, 2001, the district court entered an order appointing an assistant United States attorney from the Southern District of Florida, as the "commissioner" and authorizing him to "take such steps as are necessary, including issuance of commissioner's subpoenas to be served on persons within the jurisdiction of this Court, to collect the evidence requested." On April 30, 2001, he issued subpoenas to each of the appellees commanding their appearance at the federal courthouse in Miami on a given date and time, to give testimony to Canadian authorities concerning the Canadian smuggling investigation. Prior to the scheduled testimony, however, the appellees moved in the district court to quash the subpoenas and for a protective order.

On August 23, 2001, a magistrate judge ordered that the subpoenas be quashed. First, the magistrate judge held that by its own terms, the MLAT fully incorporates the existing substantive law of the United States as the "Requested State," including 28 U.S.C. § 1782. According to this Circuit, section 1782 contains an implicit foreign discoverability requirement. This rule requires that the information sought in the United States be discoverable under the laws of the foreign jurisdiction. The magistrate judge reasoned that since Canadian authorities are not allowed to compel witness testimony in domestic criminal investigations at the pre-charge stage, such testimony cannot be compelled in this case by virtue of this Circuit's construction of 28 U.S.C. § 1782. Second, the magistrate judge focused on the second paragraph of section 1782(a) which explicitly states that "a person may not be compelled to give his testimony ... in violation of any legally applicable privilege." The magistrate judge held that the inability under Canadian law to compel witness testimony in a criminal investigation prior to the filing of formal charges amounted to a "legally applicable privilege" and therefore, for this additional reason, the appellees could not be compelled to provide the testimony. On behalf of the Canadian authorities, the appointed commissioner and the United States sought reconsideration of the magistrate judge's ruling in the district court. After further briefing by the parties, the district court affirmed the magistrate judge's order quashing the subpoenas, finding the magistrate judge's order not "clearly erroneous or contrary to law."² The district court entered a final order quashing the subpoenas.

D. ...