U.S. v. Sealed 1

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SEALED 1, Letter of Request forLegal Assistance from the Deputy Prosecutor General of The Russian Federation, pursuant to an agreement between The Government of The United States of America and The Governmentof the Russian Federation onCooperation In Criminal Law Matters In the Criminal Matter of, Defendant-Appellant.
No. 00-35347 D.C. No. CV-00-328--RSL United States Court of Appeals Ninth Circuit Filed November 1, 2000
Appeal from the United States District Courtfor the Western District of WashingtonRobert S. Lasnik, District Judge, Presiding
Argued and SubmittedOctober 3, 2000-- Seattle, Washington
Before: Alfred T. Goodwin, Arthur L. Alarcon, andM. Margaret McKeown, Circuit Judges.

Opinion by Judge McKeown

COUNSEL
Angelo J. Calfo of Yarmuth Wilsdon Calfo PLLC, fordefendant-appellant Sealed 1.

Charles S. Greene, III, Office of International Affairs, UnitedStates Department of Justice, for plaintiff-appellee UnitedStates of America.

OPINION
McKEOWN, Circuit Judge:
        The tax man cometh -- all the way from Russia. ButAppellant asserts that his journey was not authorized by U.S. law, specifically 28 U.S.C. § 1782, which governs formalassistance to foreign criminal investigations. Appellant, whose identity is confidential and under seal, argues that § 1782 does not permit such assistance until an actual foreigncriminal proceeding is "imminent." We disagree; neither theplain language of the statute nor Ninth Circuit precedentimposes an imminence requirement. We therefore affirm thedistrict court's denial of Appellant's motion to dismiss proceedings conducted by the United States Attorney for the Western District of Washington, acting as Commissioner pursuant to § 1782.

DISCUSSION         Because our primary task here involves interpretation of astatute, requiring purely legal analysis, and because the detailsof this matter are under seal, we do not recite the factual background of the case. Nor is a recitation necessary to our legaldiscussion except to say that the Russian Federation sought U.S. assistance in connection with an ongoing criminal investigation of alleged tax fraud.
        We have jurisdiction pursuant to 28 U.S.C. § 1291. "Thedistrict court's orders made pursuant to § 1782 are final, andthus appealable under 28 U.S.C. § 1291." In re Letters Rogatory from the Tokyo Dist. Prosecutor's Office, Tokyo, Japan (Okubo), 16 F.3d 1016, 1018 n.1 (9th Cir. 1994). We reviewde novo questions of statutory interpretation. See United States v. Doe, 136 F.3d 631, 634 (9th Cir. 1998).

I. Historical Background         To understand the current version of § 1782 1 in context, a brief history is in order. The modern foreign assistance statutecan be traced to the late 1940s, when Congress twiceamended the then-existing law by eliminating a requirementthat the foreign government be a party to the proceeding andby stating that the law applies to "any judicial proceedingpending in any court in a foreign country." See Pub. L. No. 80-773, 62 Stat. 869, 949 (June 25, 1948); Pub. L. No. 81-72, 63 Stat. 89, 103 (May 24, 1949); see also Steven M. Saraisky, Comment, How to Construe Section 1782: A Textual Prescription to Restore the Judge's Discretion, 61 U. Chi. L. Rev. 1127, 1131 (1994).
        The next revision to § 1782 came in 1964 when, followingsuggestions made by the Congressionally-appointed Commission and Advisory Committee on International Rules of Judicial Procedure, and responding to critics who charged that thestatute was ineffective, Congress amended the statute onceagain. See Pub. L. No. 88-619, 78 Stat. 995, 997 § 9 (Oct. 3, 1964); Saraisky, supra, at 1131-32. The 1964 amendments enacted a number of important changes, all serving to loosenthe statute's requirements: substituting the word "tribunal" for"judicial proceedings," in order to clarify that the law appliedto administrative and quasi-judicial proceedings; broadening the class of those who could request assistance; and grantingdistrict courts broad discretion to act upon foreign requests forassistance. See In re Letters Rogatory from the Tokyo Dist., Tokyo, Japan, 539 F.2d 1216, 1218 (9th Cir. 1976) ("The statute . . . has had a history which reflects a desire on the partof Congress to increase the power of district courts to respondto letters rogatory."); Saraisky, supra, at 1132-33. Also of significance, the 1964 statute eliminated a requirement that theforeign proceeding be "pending." Instead, according to the Reporter to the Congressional Commission, all that was necessary for the statute to apply was that "the evidence is eventually to be used in such a proceeding." Hans Smit, International Litigation Under the United States Code, 65Colum. L. Rev. 1015, 1026 (1965).

II. Interpretations of the 1964 Amendments         In the years following the 1964 amendments, courts inother circuits acknowledged the elimination of the "pending"requirement, but some only reluctantly so. Several circuits, most notably the Second and Eleventh, grafted on toS 1782a variety of requirements that stopped just short of "pending," apparently motivated by concern that foreign governments notsimply conduct fishing expeditions in American waters. See, e.g., In re Request for Assistance from Ministry of LegalAffairs of Trinidad and Tobago, 848 F.2d 1151, 1155-56 (11th Cir. 1988) ("[T]he determination to grant assistanceturns not on whether the proceeding is pending but onwhether the requested evidence will likely be of use in a judicial proceeding. . . . The district judge should satisfy himselfthat a proceeding is very likely to occur.") (emphasis added); In re Request for International Judicial Assistance (LetterRogatory) for the Federative Republic of Brazil, 936 F.2d702, 706 (2d Cir. 1991) ("we think it prudent . .. to requirethat adjudicative proceedings be imminent--very likely to occur and very soon to occur") (emphasis added). Notably, however, the District of Columbia Circuit has adopted a lessrestrictive view of § 1782. See In re Letter of Request from the Crown Prosecution Service of the United Kingdom , 870F.2d 686, 687 (D.C. Cir. 1989) (R. B. Ginsburg, J.) ("it suffices that the proceeding in the foreign tribunal and its contours be in reasonable contemplation when the request ismade") (emphasis added).

III. The 1996 Amendment         Of central relevance to this case, Congress mostrecently amended § 1782 in 1996 by adding the phrase "including criminal investigations conducted before formal accusation" to the scope of foreign investigations to which theU.S. is authorized to provide formal assistance. Appellanturges us to read an "imminence" requirement into the currentversion of § 1782. We decline to do so, based on the statutorylanguage and Ninth Circuit precedent.
        Focusing on the plain language of the statute, as wemust, see Tang v. Reno, 77 F.3d 1194, 1196 (9th Cir. 1996), we note that the word "imminent" does not appear. Surely, had Congress wanted to authorize assistance to foreign investigations only when foreign proceedings are imminent, itcould have said so. It is also impossible to read an imminencerequirement into the statute following the 1996 amendment toS 1782 (authorizing assistance in "criminal investigationsconducted before formal accusation") without leading to anabsurd result. Appellant's insistence on "imminence" wouldcreate an untenable Catch-22 for foreign law-enforcementauthorities seeking U.S. aid: investigators would be unable toreceive such help before proceedings actually became imminent, and yet the proceedings might never become imminentbecause the investigators would be stymied in collecting evidence necessary to justify the filing of criminal charges. Appellant's interpretation of the statute would, in effect, preclude assistance under § 1782 before the filing of actual criminal charges. That result, of course, is in direct conflict withthe plain language of the 1996 amendment.2
        Even before the 1996 amendment, we never read animminence requirement into § 1782. Instead, the Ninth Circuithad required only that "the investigation in connection withwhich the request is made must relate to a judicial or quasijudicial controversy." In re Request for Judicial AssistanceFrom the Seoul Dist. Criminal Court, Seoul, Korea , 555 F.2d720, 723 (9th Cir. 1977) (citing In re Letters of Request toExamine Witnesses from the Court of Queen's Bench forManitoba, Canada, 488 F.2d 511, 512 (9th Cir. 1973)). Weupheld assistance in situations where, although there was anongoing criminal investigation, no charges or proceedingwere imminent. See In re Letters Rogatory from the TokyoDist. Prosecutor's Office, Tokyo, Japan (Okubo), 16 F.3d1016 (9th Cir. 1994) (approving U.S. assistance in Japanesemurder investigation before charges filed); In re Letters Rogatory From the Tokyo Dist., Tokyo, Japan, 539 F.2d 1216, 1217 (9th Cir. 1976) (approving U.S. assistance in takingdepositions "to be used in criminal investigations and possible future criminal trials in Japan."); cf. Korea , 555 F.2d at 723 ("[u]nder the statute the only restrictions explicitly stated arethat the request be made by a foreign or international tribunal, and that the testimony or material requested be for use in aproceeding in such a tribunal.").3
        In sum, neither the plain language of § 1782 nor NinthCircuit precedent requires us to read into the statute an imminence requirement, and we will not do so here.

IV. Abuse of Discretion         Finally, Appellant challenges the issuance of the order onthe grounds that there is no ongoing criminal investigationunder § 1782. We review application of § 1782 to the facts ofthe case for abuse of discretion. See Korea, 555 F.2d at 724 ("We find no abuse of discretion in honoring the request [forforeign assistance] under these circumstances."); see also Inre Request for Assistance from Ministry of Legal Affairs ofTrinidad and Tobago, 848 F.2d 1151, 1154 (11th Cir. 1988) ("Since Congress has given the district courts broad discretionin granting judicial assistance to foreign countries, we mayoverturn a district court's grant of such assistance only if it isan abuse of discretion.").
        The district court was provided with certain letters fromRussian authorities. We have reviewed the same documentsand have no reason to doubt the district court's analysis. Wefind no abuse of discretion in the district court's denial of Appellant's motion to dismiss proceedings by the Commissioner.
        AFFIRMED.


1 Section 1782 currently reads, in relevant part:

§ 1782. Assistance to foreign and international tribunals and to litigants before such tribunals

(a) 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, including criminal investiga tions conducted before formal accusation. 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. By virtue of his appointment, the person appointed has power to administer any necessary oath and take the testimony or statement. The order may prescribe the practice and procedure, which may be in whole or part the prac tice and procedure of the foreign country or the international tri bunal, for taking the testimony or statement or producing the document or other thing.

(Amended by Pub. L. No. 104-106, Div. A, Title XIII,S 1342(b), 110 Stat. 486, 486 (1996).

2 Appellant cites one case, In re Euromepa, 154 F.3d 24 (2d Cir. 1998) for the proposition that the imminence requirement survives the 1996amendment to §1782. Euromepa is not relevant here, however, for thesimple reason that it is a civil case, and the 1996 amendment refers specifically to criminal investigations. There does not appear to be any reportedcase, from any circuit, specifically addressing whether the imminencerequirement survives the 1996 amendment to § 1782 in a criminal case. Aswe explain below, however, imminence has never been a requirement inthe Ninth Circuit. 3 Appellant voiced concern during oral argument that the lack of animminence requirement would allow foreign governments, including some that provide far fewer protections for targets of criminal investigations than we do, to conduct "fishing expeditions" in the U.S. This is a legitimate fear, but we note that the statute provides considerable discretion todistrict courts to decline to order U.S. authorities to assist in situationswhere the foreign government has, for example, insufficient basis tobelieve that evidence may be found here, or is simply seeking to harasspolitical opponents. See 28 U.S.C. § 1782 ("The district court . . . mayorder . . .") (emphasis added). The fact that the statute authorizes assistance does not mean that the district court must exercise its discretion togrant such assistance. The district courts are in the best position to reviewthe details of the request and to determine whether judicial assistance is justified. See In re Request for Assistance from Ministry of Legal Affairsof Trinidad and Tobago, 848 F.2d 1151, 1154 (11th Cir. 1988) ("Congresshas given the district courts broad discretion in granting judicial assistanceto foreign countries.").