Case of the Day: United States v. McLellan

The case of the day is United States v. McLellan (D. Mass. 2018). Ross McLellan was charged with conspiracy, securities fraud, and wire fraud. He sought an order to compel the government to exercise rights under the US/Netherlands MLAT so that he could obtain the testimony of a Dutch citizen for trial. He sought similar orders to compel the government to seek evidence for his use under the US/UK MLAT. In the alternative, he sought to exclude evidence related to the transactions on which he was seeking information at trial.

The judge denied the motion to compel the government. “The Court lacks authority to compel the government to exercise its rights under any of the relevant MLATs on behalf of, or for the benefit of, a private person.” The holding is apparently correct in light of precedent holding that treaties do not, in general, create private rights. The judge also held that there was no basis to exclude the government’s evidence. That seems right as a general matter, though I don’t know whether there is any criminal procedure gloss on the ordinary principle that relevant evidence is admissible unless it is hearsay, etc.

But the judge recognized that there could be “due process or fairness” concerns, given that the government has much more power than the defendant to compel the production of evidence from abroad in a criminal case. The judge expressly reserved to McLellan the right to bring a post-trial motion asserting that he was denied due process, in the event he is found guilty, and he also indicated that he wants the parties to “work this out” by ordering them to file a status report stating their positions on how to proceed—on whether, for example, to admit in evidence the depositions of foreign witnesses who may not be willing to appear at trial.

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