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286

Assisting Foreign Prosecutors

Judicial assistance is a two-way street. To ensure that international cooperation operates smoothly, the United States Attorney (USA) must execute promptly all requests for judicial assistance that are forwarded from the Office of International Affairs (OIA). (Requests for assistance in civil cases are transmitted by the Civil Division's Office of Foreign Litigation).

Some foreign prosecutors and police transmit requests in criminal matters to USAs directly, or indirectly through investigative agencies. Because execution of such requests may undercut Departmental policies (e.g., where the Department is encountering difficulties with a particular foreign government), all such requests should be discussed with OIA before execution.

Where execution of foreign requests for assistance requires compulsory process, OIA provides instructions and sample forms for securing a "commission" (i.e., the "commission procedure") in the letter transmitting the request to the district. The instructions vary depending on whether the request is a letter rogatory or a treaty request. Letters rogatory are executed pursuant to and in accordance with 28 U.S.C. § 1782. Treaty requests rely on the § 1782 commission procedure but are not restricted by limitations contained in § 1782 to the extent that the treaty's scope is broader. See, e.g., United States v. Erato, 2 F.3d 11 (2d Cir. 1993).

In general, the commission procedure involves filing an application with the district court seeking appointment as a commissioner under 28 U.S.C. § 1782. Normally, the Assistant United States Attorney (AUSA) requests that the court appoint him or her as commissioner. The AUSA may also request that the court appoint one or more co-commissioners, such as a foreign judge or police officer who travels to the United States to participate in execution of the request. Once appointed, the commissioner may issue "commissioner" subpoenas requiring the production of records or the attendance of witnesses at depositions.

Depositions will be conducted pursuant to the Federal Rules of Civil Procedure unless the order specifies alternative procedures (see 28 U.S.C. § 1782; Rule 15(d), F.R. Crim. P.). For example, to the extent that the Federal Rules of Civil Procedure require notice and the request seeks secrecy, the application and proposed Order must specify that the notice provisions of the Federal Rules of Civil Procedure will not apply. In taking a deposition with no foreign authorities present, the commissioner asks the questions set forth in the request for assistance. The commissioner should also ask appropriate follow-up questions. If a foreign judge, attorney or police official wishes to attend the deposition and participate, he or she may do so. Even where such attendance is provided for by a self-executing provision of an applicable treaty, the order appointing the commissioner should specify that foreign officials and/or attorneys (described by title, not name) may attend and participate. The commissioner should conduct the deposition, in accordance with the order, allowing participation by the foreign authority designed to secure the assistance requested. Witnesses may invoke any applicable privilege, domestic or foreign; however, under certain treaties, claims of foreign privileges are reserved for disposition in the requesting state. Witnesses may be represented by counsel; however, witnesses have no right to appointed attorneys. A witness is usually required to sign the deposition, which should be certified by the commissioner and returned to OIA, together with a copy of the request.

Costs of executing requests (including court reporter's fees) are the responsibility of the country making the request, unless an applicable treaty requires the United States to pay for costs of execution; in that event, the United States Attorney■s Office (USAO) pays the costs. Expenses chargeable to the requesting state are generally paid by the Embassy of the country making the request after receipt of an invoice from the provider of the service. Where the foreign country is responsible for costs of execution, the USAO should avoid becoming the guarantor for payment (i.e., allow the foreign authorities to contract for the service, including arrangement for payment).

Some requests may require investigative assistance (e.g., the witness's current address for service of a commissioner's subpoena, service of a commissioner's subpoena on a business and collection of the records sought). In such instances, the commissioner may draw on the resources of Federal investigative agencies. Generally, the Federal Bureau of Investigation will assist in executing foreign requests, although where other law enforcement agencies have a pre-existing interest in the subject matter of the request, the assistance of those agencies will be sought.

Not all requests require a commissioner for execution (i.e., a commission is required only if compulsory measures are necessary to execute a request). For example, if a witness will cooperate voluntarily, there is no need for a commissioner's subpoena or a commissioner. See 28 U.S.C. § 1782(b). However, when foreign officials are travelling to the United States to participate in depositions a commission should be secured and even cooperating witnesses should receive a subpoena to appear and testify or produce evidence. In other situations, consult with OIA about less formal means of executing the foreign request.

[cited in USAM 9-13.540]