In re Letters Rogatory, Etc.

• Decision Date: 23 March 1939
• Citation: 26 F. Supp. 852
• Parties: In re LETTERS ROGATORY FROM EXAMINING MAGISTRATE OF TRIBUNAL OF VERSAILLES, FRANCE.
• Court: U.S. District Court — District of Maryland

26 F. Supp. 852

In re LETTERS ROGATORY FROM EXAMINING MAGISTRATE OF TRIBUNAL OF VERSAILLES, FRANCE.

District Court, D. Maryland.

March 23, 1939.

WILLIAM C. COLEMAN, District Judge.

This Court has received a request in the form of a judicial commission, issued on March 15th, 1938, and March 18th, 1939, by the Examining Magistrate of the Tribunal of Versailles, duly transmitted through the French Ambassador at Washington, for the issuance by this Court of a commission or letters rogatory to take the testimony, in the form of answers to specific interrogatories, of one Michael Stein, alleged to be now residing in Baltimore. This testimony, as stated in the commission of the French court, is desired for use in a proceeding now pending in that court against one Eugene Weidmann and others, "accused of voluntary homicide, complicity, theft, complicity, receiving stolen goods." The letter of transmittal of the French Ambassador recites that Weidmann is a German citizen, and that he is "now accused of having murdered several persons among whom a citizen of the United States named Jean de Koven."

It thus appears that the aid of this Court is invoked by a foreign court to obtain evidence for use by that court in a criminal proceeding, and the question presented thereby is whether this Court has jurisdiction to lend its aid in this way.

I conclude that this Court is without such jurisdiction. The jurisdiction of the United States District Courts with respect to letters rogatory issued by a foreign court is statutory, and is restricted as set forth in Section 4071 of the Revised Statutes, 28 U.S.C.A. § 701, which is as follows: "The testimony of any witness residing within the United States, to be used in any suit for the recovery of money or property depending in any court in any foreign country with which the United States are at peace, and in which the government of such foreign country shall be a party or shall have an interest, may be obtained, to be used in such suit. If a commission or letters rogatory to take such testimony, together with specific written interrogatories, accompanying the same, and addressed to such witness, shall have been issued from the court in which such suit is pending, on producing the same before the district judge of any district where the witness resides or shall be found, and on due proof being made to such judge that the testimony of any witness is material to the party desiring the same, such judge shall issue a summons to such witness requiring him to appear before the officer or commissioner named in such commission or letters rogatory, to testify in such suit. And no witness shall be compelled to appear or to testify under this section except for the purpose of answering such interrogatories so issued and accompanying such commission or letters. When counsel for all the parties attend the examination, they may consent that questions in addition to those accompanying the commission or letters rogatory may be put to the witness, unless the commission or letters rogatory exclude such additional interrogatories. The summons shall specify the time and place at which the witness is required to attend, which place shall be within one hundred miles of the place where the witness resides or shall be served with such summons."

It will thus be seen that this court's jurisdiction is limited to situations where the testimony is to be used in civil, not criminal, cases in the foreign court; and indeed, to civil cases of a specially defined character, that is, to suits "for the recovery of money or property," in which the foreign government "shall be a party, or shall have an interest."

It is true, the order of the French court recites that the person in connection with whose trial the testimony proposed to be taken in Baltimore is desired, is accused, among other things, of theft and receiving stolen goods, from which it may reasonably be inferred that the recovery of such goods, if not already effected, is desired; but such obviously does not convert the proceeding into a civil one.

The conclusion here reached appears to be supported by previous decisions. We find no reported case to the contrary. See In re Spanish Consul's Petition, D.C.N.Y. 1867, Fed.Cas.No.13,202; In re Letters Rogatory from First District Judge of Vera Cruz, C.C.N.Y.1888, 36 F. 306; In re Letters Rogatory of Republic of Colombia D.C.S.D.N.Y.1933, 4 F.Supp. 165.

In the last, and the most recent of the above named cases, the Government of the Republic of Colombia was interested in an investigation of alleged breach of its custom laws, and letters rogatory issued out of the Customs Court of Bogota, Colombia, directed to the United States District Court for the Southern District of New York. In concluding that the District Court was without jurisdiction, District Judge Woolsey said in the course of his opinion, pages, 165, 166:

"Under letters rogatory here submitted, apparently the...