- Subpoenas Directed to United States Citizens and Permanent Residents of the United States: 28 U.S.C. § 1783 authorizes the courts of the United States to issue subpoenas -- to a national or resident of the United States located in a foreign country -- to appear or to produce 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. § 1784 authorizes contempt sanctions if the subpoenaed person fails to appear or otherwise comply with the subpoena. Foreign laws may, however, restrict the method of serving such subpoenas, especially when the witness is a dual national. The Office of International Affairs (OIA) aids prosecutors in selecting the appropriate methods for serving subpoenas abroad. In most cases, the subpoena may be served by an American consular official who acts upon receiving a request from the Department of State. These requests are coordinated by the Special Authorizations Unit, Justice Management Division (202-307-1942).
- Bank of Nova Scotia Subpoenas: The United States has obtained bank or business records located abroad by serving subpoenas on branches of the bank or business located in the United States, even where production of the records 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 secrecy laws. 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. 1982), cert. 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 decide "the general issue of whether a court may ever order action in violation of foreign laws" but, nonetheless, holding that "even if a court has the power to issue contempt orders under certain circumstances," no order should have issued given 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 respect to efforts to comply with the subpoena). However, foreign governments strongly object to such subpoenas, contending that they constitute an improper exercise of United States jurisdiction. Though the issue has arisen in connection with corporate entities, these concerns are equally applicable to a subpoena directed at an individual where the demanded production of evidence located in the territory of another country would violate that country's laws.
Since the use of unilateral compulsory measures can adversely affect the law enforcement relationship with the foreign country, all federal prosecutors must obtain written approval through OIA before issuing any subpoenas to persons or entities in the United States for records located abroad. The request must 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 and identifying 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 sought; and
- Any other information relevant to OIA's determination.
In emergencies, OIA can act on the basis of an oral request containing the 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 determining whether such a subpoena should be authorized:
- The availability of alternative methods for obtaining the records in a timely manner, such as use of mutual assistance treaties, tax treaties or letters rogatory;
- The indispensability of the records to the success of the investigation or prosecution; and
- The need to protect against the destruction of records located abroad and to protect the United States' ability to prosecute for contempt or obstruction of justice for such destruction.
OIA must also be consulted prior to initiating enforcement proceedings 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 corporation who is temporarily in or passing through the United States when the testimony sought relates to the officer's or attorney's duties in connection with the operation of the bank or corporation.