IN RE LETTER ROGATORY FROM JUS. CT., MONTREAL, CAN., 74-162.

• Decision Date: 25 October 1974
• Docket Number: No. 74-162.,74-162.
• Citation: 383 F. Supp. 857
• Parties: In re LETTER ROGATORY FROM the JUSTICE COURT, DISTRICT OF MONTREAL, CANADA.
• Court: U.S. District Court — Western District of Michigan

383 F. Supp. 857

In re LETTER ROGATORY FROM the JUSTICE COURT, DISTRICT OF MONTREAL, CANADA.

No. 74-162.

United States District Court, E. D. Michigan, S. D.

October 25, 1974.

Michael S. Friedman, Detroit, Mich., for movant.

John L. Newcomer, Special Atty., Detroit Strike Force U. S. Dept. of Justice, Detroit, Mich., for respondent.

MEMORANDUM OPINION

JAMES HARVEY, District Judge.

This is a motion to quash a subpoena which was issued in a second attempt by a Canadian prosecutor to obtain records from the Detroit Bank and Trust Company relative to Mr. John Fecarotta, a defendant in a Canadian prosecution. The first attempt to obtain those records allegedly involved an informal liaison between the Canadian prosecutor's office and the Internal Revenue Service, which served a summons on the Detroit Bank and Trust pursuant to 26 U.S.C.A. Section 7602. Mr. Fecarotta filed for an injunction against the divulgence of that information, and a stipulation was entered into temporarily halting that line of discovery.

Apparently, having concluded that it was improper to try to use the IRS as a conduit for the information, the Canadian prosecution is now attempting to use the procedure known as letters rogatory to have a subpoena duces tecum from this court served on the Detroit Bank and Trust, again in order to obtain evidence for use in Mr. Fecarotta's Canadian trial. Pursuant to 28 U.S.C.A. Section 1782, a subpoena was signed by a United States District Judge in the Eastern District of Michigan on September 5, 1974, ex parte. Mr. Fecarotta received notice from the Detroit Bank and Trust Company of that subpoena on October 7, 1974, and immediately filed the present motion to quash, on the ground that 28 U.S.C.A. Section 1782 does not authorize the use of letters rogatory in criminal proceedings, or, in the alternative, on the ground that the Court in its discretion can and should refuse to grant the subpoena because the information may be used improperly in the Canadian trial.

Section 1782 of 28 U.S.C.A. provides in part:

"The district court of the district in which a person resides or is found may order him to . . . produce a document . . . for use in a proceeding in a foreign or international tribunal . . ."

The language of the statute is silent with respect to whether criminal proceedings are intended to be excluded from the proceedings covered by the statute. The case law is completely devoid of decisions or even discussions of this point. The only helpful route for illuminating the question is to examine the legislative history of the statute, which has undergone two major revisions. Prior to 1949, the pertinent part of the section read, ". . . to be used in any civil action." In 1949 the language was amended to apply to evidence to be used in any "judicial proceeding". Finally, in 1964 it was amended to its present form quoted above. Moore, at 4B Moore's Federal Practice, Section 28.09(2), interprets this course of events to mean that letters rogatory can now be used in both civil and criminal proceedings, by contrast with the prior language limiting their use to civil proceedings. The legislative history as reported in the U. S. Code Congressional Service is unenlightening, reflecting for the 1949 amendment only that,

"This amendment corrects

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