Letter of Request from Crown Prosecution Service of United Kingdom, In re

• Decision Date: 17 March 1989
• Docket Number: No. 88-5122,88-5122
• Citation: 870 F.2d 686
• Parties: In re LETTER OF REQUEST FROM the CROWN PROSECUTION SERVICE OF the UNITED KINGDOM, Thomas J. Ward, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 686

870 F.2d 686

276 U.S.App.D.C. 272

In re LETTER OF REQUEST FROM the CROWN PROSECUTION SERVICE OF the UNITED KINGDOM, Thomas J. Ward, Appellant.

No. 88-5122.

United States Court of Appeals District of Columbia Circuit.

Argued Dec. 5, 1988.

Decided March 17, 1989.

Appeal from the United States District Court for the District of Columbia (Misc. No. 88-0028).

Howard W. Gutman, with whom David D. Aufhauser, and Mark J. Hulkower were on the brief, for appellant.

John C. Cleary, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John D. Bates, and R. Craig Lawrence, Asst. U.S. Attys., were on the brief, for appellee.

Before RUTH BADER GINSBURG and SILBERMAN, Circuit Judges, and GIBSON, Senior Circuit Judge. ^*

Opinion for the Court filed by Circuit Judge RUTH BADER GINSBURG.

RUTH BADER GINSBURG, Circuit Judge:

This case concerns the propriety of a district court order for the taking of evidence in aid of foreign criminal proceedings. By order filed January 21, 1988, the district court appointed Commissioners to obtain evidence sought by the Crown Prosecution Service of the United Kingdom. The order was made, on application of the United States, pursuant to 28 U.S.C. Sec. 1782 (1982), which authorizes assistance to foreign and international tribunals and to litigants before such tribunals.

Appellant Thomas J. Ward, a central figure in the matters on which proof was requested, moved in the district court to quash the appointment of the Commissioners and the subpoenas they issued; alternately, Ward sought a protective order limiting use of the information collected by the Commissioners. On March 21, 1988, the district court denied Ward's motion, In re Letter of Request from the Crown Prosecution Serv. of the U.K., 683 F.Supp. 841 (D.D.C.1988), and Ward now appeals.

We affirm the district court's judgment in principal part. The Crown Prosecution Service, we hold, qualifies as an "interested person" competent to request aid under section 1782. The judicial proceeding for which assistance is sought, we further hold, need not be pending at the time of the request for assistance; it suffices that the proceeding in the foreign tribunal and its contours be in reasonable contemplation when the request is made. We remand the case, however, so that the district court may ensure that the evidence is taken in a manner appropriate for use in judicial proceedings in the United Kingdom.

I. BACKGROUND

The Crown Prosecution Service of the United Kingdom, headed by the Director of Public Prosecutions, is required under the provisions of the Prosecution of Offences Act 1985 "to take over the conduct of all [major] criminal proceedings in England and Wales ... instituted on behalf of a police force"; by Letter of Request dated September 30, 1987, the Service applied through diplomatic channels for "judicial assistance in the transmission of certain information." Commission Rogatoire from Crown Prosecutor F.J. Coford to Competent Judicial Authorities at 1 (Sept. 30, 1987) [hereinafter Letter]. The Letter explained:

The Director of Public Prosecutions is conducting criminal proceedings against Ernest Saunders, the former Chief Executive of Guinness PLC ("Guinness"), who is presently charged with attempting to pervert the course of justice and destruction and falsification of documents. In connection with these proceedings, enquiries are being conducted by the Company Fraud Department of the Metropolitan and City of London Police into allegations of an illegal share support scheme pursued in relation to the takeover by Guinness of the Distillers Company....

Id. Prior to the dispatch of the Letter, on or about May 7, 1987, Saunders was arrested and charged with criminal conduct. Declaration of Robert R. Chapman at 2. These initial charges--attempt to pervert the course of justice, and destruction and falsification of documents--were substantially augmented in the following months. Id.

The Guinness share support scheme, according to the Letter, involved several questionable payments. One alleged recipient was Guinness insider Sir Isadore Jack Lyons of London. Another was Thomas Ward, a Guinness director, United States citizen, and Washington, D.C., attorney. Letter at 2. Lyons had asserted that a portion of the payment made to him was for the purchase by Guinness, in October 1986, of Lyons' cooperative apartment at Watergate South in Washington, D.C. The transferee of record on the documents relating to the sale of the Lyons' apartment, however, is Ward. Id. at 3. To "carry out a proper investigation and assist a prosecution" in London, id., the Crown Prosecutor sought statements and relevant documents about the Watergate apartment sale from: (1) Watergate South, Inc.; (2) the law firm of Hogan & Hartson, believed to have represented Lyons in both the 1980 acquisition and the 1986 sale of the apartment; and (3) Cafritz Company, believed to be managing agent for the Watergate South apartments. Id. at 3-4. The Crown Prosecutor also sought evidence on Lyons' fees and remuneration and on other matters from Bain & Company, Boston, management consultants for Guinness. Id. at 4.

The Letter represented that the Crown Prosecutor sought statements "in a form which is admissible in the English courts," id. at 3, and clarified that the persons from whom information was sought "at this stage ... are not suspected of complicity in any criminal offenses and they will be treated as potential prosecution witnesses." Id. at 4. On or about October 13, 1987, following dispatch of the Letter, but before its presentation to the district court, Saunders was charged with thirty-seven additional offenses, including violations of the Theft Act 1968 and Companies Act 1985. Declaration of Robert R. Chapman at 2.

By diplomatic note dated October 19, 1987, the British Embassy in Washington, D.C., forwarded the Letter to the U.S. Department of State. On November 16, 1987, after routine processing, the State Department forwarded the Letter to the Office of International Affairs (OIA), Criminal Division, U.S. Department of Justice. On January 5, 1988, the OIA forwarded the Letter to the U.S. Attorney's Office for the District of Columbia. Responding to the U.S. Attorney's ex parte application, the district court, on January 21, 1988, appointed Robert R. Chapman, Assistant U.S. Attorney, and John E. Harris, OIA Associate Director, as Commissioners of the Court pursuant to 28 U.S.C. Sec. 1782; the district judge instructed the Commissioners "to obtain evidence from the witnesses in conformity with the letter of request," and "to transmit [the] certified evidence to the Crown Prosecution Service in the United Kingdom." Misc. No. 88-0028 (D.D.C. Jan. 21, 1988) (order). Section 1782(a), the authority for the district court's order and the prescription centrally at issue in this case, provides in most pertinent part:

The 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. 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 and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court.

28 U.S.C. Sec. 1782(a).

Ward moved to quash the order appointing the Commissioners, along with all subpoenas issued by the Commissioners. Alternately, Ward sought a protective order to limit the use of the information gathered. His principal objection was and remains that the evidence was not sought "for use in a [judicial] proceeding," as required by section 1782, but by "Scotland Yard," for a police investigation with no "proceeding in a ... tribunal" yet in the picture. Concluding that the statute does not require "that the judicial proceeding be pending at the time assistance is sought under Section 1782," the district court, on March 21, 1988, denied Ward's motion. 683 F.Supp. at 844. Ward filed a notice of appeal on April 5, 1988.

The Commissioners thereafter refused Ward's request to attend and participate, through counsel, in the witness interviews. On June 28, 1988, Ward petitioned the district court to enforce his alleged "right of attendance at depositions of third-party witnesses." The district court denied Ward's motion. Misc. No. 88-0028 (D.D.C. July 14, 1988) (order).

Meanwhile, the criminal proceedings developed further in the United Kingdom. A warrant for the arrest of Ward for violations of the Theft Act 1968 issued on or about February 2, 1988 and remains unexecuted. Declaration of Robert R. Chapman at 3. On or about December 16, 1988, a sixty-five count indictment was lodged with the Central Criminal Court (Old Bailey) charging seven defendants, including Saunders and Lyons, with multiple criminal offenses. Id. at 2. Ward, although not indicted, is named as a co-conspirator in three of the counts, and is also identified in two other counts. Id. at 3. The indictment is now pending trial with an anticipated trial date later this year. Id.

II. DISCUSSION

A. Ward's Standing

The government maintains that Ward lacks a protectable interest, because the Commissioners seek no evidence from him. Brief for Appellees at 9. At the March 10, 1988 hearing before the district court, however, the government conceded that Ward was "a potential target" in a "wide-ranging" British investigation. Transcript at 22. The precedent in point is uniform and we adhere to it. A person situated as Ward is, one against whom information obtained under section 1782 may be used, has standing to assert that, to his detriment, the authority for which the section provides is being abused. See In re Request for Judicial Assistance from the Seoul Dist. Crim. Ct., Seoul, Korea, 555 F.2d 720, 723 (9th Cir.1977); In re Letter...