In re Request for Judicial Assistance from Seoul

• Decision Date: 25 February 1977
• Docket Number: No. M-76-151.,M-76-151.
• Citation: 428 F. Supp. 109
• Court: U.S. District Court — Northern District of California
• Parties: In re REQUEST FOR JUDICIAL ASSISTANCE FROM THE SEOUL DISTRICT CRIMINAL COURT, SEOUL, KOREA.

428 F. Supp. 109

In re REQUEST FOR JUDICIAL ASSISTANCE FROM THE SEOUL DISTRICT CRIMINAL COURT, SEOUL, KOREA.

No. M-76-151.

United States District Court, N. D. California.

February 25, 1977.

COPYRIGHT MATERIAL OMITTED

Mark Horlings, James Frolick, San Francisco, Cal., for the Seoul Criminal Court defendant.

James L. Browning, Jr., U. S. Atty., William T. McGivern, Jr., Asst. U. S. Atty., San Francisco, Cal., for the U. S. Government.

ORDER

CONTI, District Judge.

This matter comes before the court after a slow progress through judicial process. Following several delays incident to consideration of the matter by each judge to whom this request for assistance rotated, an order denying assistance was entered by Chief Magistrate Goldsmith on December 20, 1976. The United States, acting on behalf of the Republic of Korea, moved to set aside this order and to order production of the records requested. Before the court could act, however, the Korean warrant underlying the request expired. The matter was continued for approximately thirty days pending receipt of a new warrant and request. On its arrival, the United States moved ex parte for an order shortening time, which was granted so as to avoid the necessity of yet more delay attendant upon familiarization with this matter by yet another judge. Local Rule 112. The new warrant appears virtually identical with the expired warrant; the issues have been adequately briefed, argued and supported by expert testimony. Thus, no good reason exists why the court should not resolve this dispute immediately.

The Seoul District Criminal Court, Seoul, Korea, has requested the assistance of the court in procuring certain financial records from the Bank of Tokyo of California relating to Mr. Young Sool Shin, a citizen of Korea. Respondent Young Sool Shin has been under investigation by Korean authorities for violations of Korea's foreign exchange laws; he was arrested, convicted and sentenced on September 27, 1976. The case is now on appeal in Korea.

According to expert testimony in this matter, new evidence such as that requested may be submitted to the appellate court, but a request for that purpose properly should originate with the appellate prosecutor and not with the trial court prosecutor. It is not known whether the records requested are needed in connection with the appeal or are needed in connection with a continuing investigation that might lead to new charges against respondent. The Korean warrant is ambiguous on this point, simply asserting a need for this evidence.

The warrant requests "Ledger of account under the name of Young Sool Shin, deposit slips and checks showing all transactions including the country of currency, signer of checks, and country of origin and destination of transactions." A statement by bank authorities giving this information is acceptable in lieu of the records themselves.

A. Order of Chief Magistrate.

The United States Attorney maintains that Chief Magistrate Goldsmith exceeded his authority in denying the requested assistance. The court agrees.

Under terms of 28 U.S.C. § 1782, only a district court may order judicial assistance. Local Rule 505(1) requires that duties devolved upon a magistrate by a district judge "shall be exercised only upon written order of reference precisely setting forth the subject matter and terms of the reference." Judge Burke's order appointing Chief Magistrate Goldsmith as Commissioner in this matter directed him "to take all steps necessary to the purposes of this order in conformity with the request of the Seoul District Criminal Court." (Emphasis added.) This language suggests that Judge Burke intended the request to be honored, and that the Chief Magistrate's function was intended to be administrative only.

Since the discretion to order or deny assistance is lodged in the district court, the order of Chief Magistrate Goldsmith denying assistance must be set aside. The court will regard his order as proposed findings and recommendations to which the United States attorney has made objection.

B. Effect of Korean Conviction.

Section 1782 limits production of information to that intended "for use in a proceeding in a foreign or international tribunal." Counsel for respondent argue that the Korean conviction of respondent deprived the warrant's requestor, Mr. Chin Kang Sak, Prosecuting Attorney of the Seoul District, of all jurisdiction in the case and removed whatever need he may have had for the information.

The fact that this information may not be usable in the court which issued the underlying warrant is not dispositive under United States law. There is no such requirement in section 1782. As the Ninth Circuit Court of Appeals made clear in In re Letters Rogatory from the Tokyo District, Tokyo, 539 F.2d 1216, 1219 (9th Cir. 1976), requests for assistance may be honored so long as that assistance is not "unrelated" to "judicial or quasi-judicial controversies."

Further, inasmuch as additional charges against respondent may be contemplated by the Korean prosecutor and the prosecutor has reiterated a need for it, the court cannot find that the information is no longer useful to Korean authorities.

Whatever technical defects in the warrant may exist should be raised before a Korean court, which is better qualified to adjudicate disputes arising from Korean procedural law. It is sufficient for this court that the information is intended for use in a judicial or quasi-judicial controversy and that the procedures followed comport with our notions of due process of law.

C. Lack of Reciprocal Treaty.

When requested assistance is granted, it is usually by reason of comity; reciprocal treaties or agreements are not required, though the existence of reciprocal practices (or lack of them) may influence a court's decision. See, e. g., In re Letters Rogatory from the Tokyo District, Tokyo, supra; The Signe, 37 F.Supp. 819 (D.C.La. 1941).

In fact, Congress intended by its 1964 amendments to Section 1782 to enable the United States to take the initiative in rendering assistance, thus hopefully stimulating reciprocal aid. See S. Rep. No. 1580, 88th Cong., 2d Sess., reprinted in 1964 U.S. Code Cong. & Admin.News 3782.

There is no evidence in the record that Korea has refused to provide similar assistance to United States courts when requested. Accordingly, the court will disregard the lack of a reciprocal treaty.

D. Fiscal and Penal Nature of Korean Proceeding.

Section 1782 does not by its terms exclude assistance in matters relating to enforcement of fiscal or penal laws of a foreign county. In the Tokyo case, supra, the Ninth Circuit Court of Appeals dissolved a stay and ordered taking of testimony requested by Japanese authorities in aid of their investigation into alleged violations of Japanese income tax laws.

The chief policy objection raised against disclosure by respondent is that revelation of such information to foreign courts will inhibit deposits in American banks by foreign nationals who now rely on confidentiality to mask their activities. An affidavit from a Bank of Tokyo of California officer asserts that a policy of disclosure on request would lead to loss of some deposits.

While it has been true that United States courts generally do not enforce penal or fiscal judgments of foreign courts, it does not follow that they should not afford assistance to a foreign country which desires to enforce its own laws against its own citizens in its own country. In view of the Ninth Circuit's lead in the Tokyo case and the broad coverage of section 1782, disclosure seems the preferred position.

E. Bank-Customer Privilege.

Section 1782(a) permits any person to claim "any legally applicable privilege." Respondent claims a privilege as a California bank depositor, pursuant to California law, to the confidentiality of his bank records.¹ It is not clear from the text of the statute, legislative history or case law whether respondent may assert a novel state privilege such as this. However, case law in this circuit favors its recognition.

The leading case is Baird v. Koerner, 279 F.2d 623 (9th Cir. 1960), wherein the Court of Appeals held...