- Subpoenas Directed to United States Citizens
Permanent Residents of the United States: 28 U.S.C. § 1783
the courts of the United States to issue subpoenas -- to a national
of the United States located in a foreign country -- to appear or
evidence. The subpoena may direct the witness to appear in the
United States or
abroad (e.g., at an American Embassy or consulate). 28 U.S.C.
authorizes contempt sanctions if the subpoenaed person fails to
otherwise comply with the subpoena. Foreign laws may, however,
method of serving such subpoenas, especially when the witness is a
The Office of International Affairs (OIA) aids prosecutors in
appropriate methods for serving subpoenas abroad. In most cases,
may be served by an American consular official who acts upon
receiving a request
from the Department of State. These requests are coordinated by
Authorizations Unit, Justice Management Division (202-307-1942).
- Bank of Nova Scotia Subpoenas: The United States has
or business records located abroad by serving subpoenas on branches
of the bank
or business located in the United States, even where production of
would violate the foreign country's secrecy laws. The courts have
upheld the use
of subpoenas to compel a bank that does business in the United
States to turn
over records held by a branch of the same bank in a foreign
country, even where
production of the records would violate the foreign country's
See In Re Grand Jury Proceedings (Bank of Nova
Scotia), 740 F.2d
817 (11th Cir.), cert. denied, 469 U.S. 1106 (1985); In
Re Grand Jury
Proceedings (Bank of Nova Scotia), 691 F.2d 1384 (11th Cir.
denied, 462 U.S. 1119 (1983); In Re Grand Jury Subpoena
Directed to Marc
Rich & Company A.G., 707 F.2d 663 (2d Cir.), cert.
denied, 463 U.S.
1215 (1983); but see, In Re Sealed Case, 832 F.2d
1268, 1272 (D.C.
Cir. 1987) (subpoena for records of a foreign company is
enforceable only if the
company does sufficient business or otherwise has sufficient
contacts within the
United States to enable court to exercise personal jurisdiction
over it); In
Re Sealed Case, 825 F.2d 494 (D.C. Cir. 1987) (declining to
general issue of whether a court may ever order action in violation
laws" but, nonetheless, holding that "even if a court has the power
contempt orders under certain circumstances," no order should have
the circumstances under consideration, e.g., status of the bank as
a third party
accused of no wrongdoing, ownership of the bank by a foreign
government, and the
district court's finding that the bank acted in good faith with
efforts to comply with the subpoena). However, foreign governments
object to such subpoenas, contending that they constitute an
of United States jurisdiction. Though the issue has arisen in
corporate entities, these concerns are equally applicable to a
at an individual where the demanded production of evidence located
territory of another country would violate that country's laws.
- Since the use of unilateral compulsory measures can adversely
law enforcement relationship with the foreign country, all federal
must obtain written approval through OIA before issuing any
subpoenas to persons
or entities in the United States for records located abroad. The
be in writing and set forth:
- The subject matter and nature of the grand jury
investigation or trial;
- A description of the records sought including their location
information such as bank account numbers;
- The purpose for which the records are sought and their
importance to the
investigation or prosecution;
- The extent of the possibility that the records might be
destroyed if the
person or entity maintaining them becomes aware that they are being
- Any other information relevant to OIA's determination.
In emergencies, OIA can act on the basis of an oral request
above information. In such instances, if OIA concurs in the
issuance of a
subpoena, the oral request must be followed by a written request.
The following considerations will be taken into account in
whether such a subpoena should be authorized:
- The availability of alternative methods for obtaining the
a timely manner, such as use of mutual assistance treaties, tax
- The indispensability of the records to the success of the
- The need to protect against the destruction of records
located abroad and
to protect the United States' ability to prosecute for contempt or
of justice for such destruction.
OIA must also be consulted prior to initiating enforcement
relating to such subpoenas.
Finally, OIA's concurrence must be obtained prior to serving
a subpoena ad
testificandum on an officer of, or attorney for, a foreign bank or
who is temporarily in or passing through the United States when the
sought relates to the officer's or attorney's duties in connection
operation of the bank or corporation.
[cited in Criminal Resource Manual 274; Criminal Resource Manual 285; USAM 9-13.520; USAM 9-13.525]