Case of the Day: In re Search of Premises

In the case of the day, In re Search of Premises Located at at 840 140th Ave. NE, Bellevue, Wash. (9th Cir. 2011), the Russian government sought judicial assistance in aid of its criminal investigation of Arkady Gontmakher for illegal crabbing. The United States and Russia are parties to a mutual legal assistance treaty, which requires the parties to provide “comprehensive mutual legal assistance in criminal matters” to each other upon request. Legal assistance under the treaty includes “providing documents, records, and other items.” The treaty requires each party to promptly execute requests from the other, and it authorizes the competent authorities on each side to “issue subpoenas, search warrants, or other orders necessary for the execution of requests.” The treaty is self-executing.

After the Russian authorities arrested Gontmakher in Moscow, the Russian government requested legal assistance under the treaty to obtain documents in the possession of a U.S. business, Global Fishing. The U.S. government then applied to the district court for judicial assistance under the treaty and the judicial assistance statute (as well as the court’s inherent authority). The court granted the application and appointed commissioners from the U.S. Attorney’s office. The commissioner issued a subpoena to Global Fishing seeking the documents, and Global Fishing sought a protective order.

Global Fishing’s factual claim was that the Russian criminal proceedings were corrupt and illegal. Its legal claim was that because the government was proceeding under the judicial assistance statute, the court had discretion to deny the application, as it would in an ordinary application under the statute. The government’s position was that because it made its request under the treaty as well as the statute, the court lacked discretion to deny the application. The district court agreed with the government that it lacked discretion to deny the application, with the caveat that the subpoena had to meet minimum due process requirements. Since the subpoena was constitutional, the court denied Global Fishing’s motion for a protective order.

On appeal, the issue was whether the treaty, which was ratified many years after enactment of the statute, superseded the statute’s grant of discretion to the district courts. One provision of the treaty was ambiguous: it required requests to be “executed in accordance with the laws of the Requested Party except if this Treaty provides otherwise,” which could mean either that the request had to be executed in accordance with the procedural mechanisms and limitations of the substantive law of the executing party, or that the request simply had to be executed in accordance with the procedural mechanisms of the executing party. But the non-textual indications of intent all favored the government. The executive’s interpretation of the treaty was “entitled to great weight.” Because Russia lacked an equivalent of the judicial assistance statute and its courts lack discretion to deny a request for legal assistance under the treaty, the government’s interpretation promotes “harmony in the interpretation” of the treaty. Perhaps most importantly, the treaty contained an exclusive list of grounds for denial of requests for legal assistance (military crimes, security or “other essential interests”, and requests that do not conform to the treaty).

The court refused, however, to conclude, as the government wished, that  it had no power whatsoever to deny a request. The issuance of subpoenas is a judicial function, and under the doctrine of separation of powers cannot be made a mere functionary of the executive. The court has the power to consider constitutional challenges to requests for legal assistance, though in the circumstances of the case it was unnecessary to consider the precise limits of that power. Even if, as Global Fishing asserted, the Russian authorities had violated Russian law in its investigation of Gontmakher, there was no showing that granting the subpoena would violate the Due Process Clause or the separation of powers doctrine.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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