Free Opening Brief in Support - District Court of Delaware - Delaware

Case 1:05-mc-00137-SLR Document 2 Filed 07/06/2005 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
I _ FOR THE DISTRICT OF DELAWARE
IN RE LETTER OF REQUEST ) ` ‘ _
.FROM RUSSIA )
_, IN THE MATTER OF ) Misc. No. 05-
. SINTAGIVIA ) _ `
. GOVERNMENT'S MEMORANDUM OF LAW
· IN SUPPORT OF APPLICATION FOR ORDER
` This memorandum of law is submitted in support of
. l the Application for.an Order pursuant to Title 28, United
States Code, Section 1782, in order to execute a letter of l
- -'·· request from Russia. A copy of the translation is attached. ._
FACTUAL BACKGROUND: ‘
. This investigation is being conducted by the Russian-
authorities who are investigating a case of alleged tax
- evasion and tax fraud. _ _ n.
` ‘ . NEVIDENCE SOUGHT:
` .- -The Russian authorities seek information from the
--_ Delaware Secretary of State's Office and a company in this
_ - District. The authority for this Court to accede to this
I request is contained in Title 28, United States Code, Section
1782, which states in part: _ - F
‘ (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
__ S other thing for use in a preceeding in a foreign or_ .
- ‘ international tribunal, including criminal ·

Case1:05—mc-00137-SLR D0cument2 Filed 07/06/2005 Page20f4
investigations conducted before formal accusation. l
The order may be nede pursuant to a letter rogatory _
" C issued, or request made, by a foreign or international
‘ ‘x tribunal or upon the application. of any interested ‘
.e - _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 j
l his appointment, the person appointed has power to _
e administer any necessary oath and take the testimony
i ` or statement. The order may prescribe the practice
and procedure, which may be in whole or part the
- practice and procedure of the foreign country or the
· international tribunal, for taking the testimony· or _
` _ statement or producing the document or other thing. _
· To the extent that the order does not prescribe
__ . otherwise, the testimony or statement shall be taken,
j ‘ -4and. the document or other thing produced, tin
· - accordance with the Federal Rules of Civil Procedure.
- The proper criteria for determining whether the court
should exercise its discretion in favor of executing the request
. . are outlined in In Re Request for Judicial Assistance from the
Seoul District Criminal Court, 555 F.2d 720, 723 (9th Cir. 1977)
(citation omitted):
l- Under the statute the only restrictions
_ j- · _ explicitly stated are that the request
‘ _ _ be made· by a foreign or international
_ _ _ tribunal, and that the testimony or
` y material requested be for use in a T `
l proceeding in such a tribunal.... [and]
I that the_investigation in connection
. with which the request is made must
` · relate to a judicial or quasi—judicial
` y ‘ controversy.
- Moreover, “ (t)he judicial proceeding for which assistance is "
_ sought ... need not be pending at the time of the request for "
- ‘ assistance; it suffices that the proceeding in the foreign
tribunal and its contours be in reasonable contemplation when

· . I- Case 1:05-mc-00137-SLR I Document 2 Filed 07/06/2005. Page 3 of 4 ·
-ia the request is made.” In Re Letter of Reguest from the Crown
_ Rrosecution Services of the United Kingdom, 870 F.2d 686, 687 l
_ --'i .(D_C_ Cir. 1989). n U _
l The letter of request in this case shows that the
U information sought is for use in such proceedings in Russia and -
.'p ` hence the nrequest comes well within those circumstances
'_ contemplated by Congress in expanding the Federal Courts'
— authority to act in such matters. In Re Letter of Reggest from
i U the Crown Prosecution Service of the United Kingdom, 870 F.2d
U 686, 689-91 (D.C. Cir. 1989); In Re Letters Rogatory from the
'Tokyo District, Tokyo, Japan, 639 F.2d 1216, 1219 (9th Cir.
‘ 1976). Therefore, I ask this Court to honor the request for
assistance. _
Q _ · The reception of letters of request and the appointment of. -
T a Commissioner to execute them are matters customarily handled U
_ eg parte, and persons with objections to the request raise those
objections by moving to quash any subpoenas issued by the
U U Commissioner. Id. 7

` . Case 1 :05-mo-00137-SLR Document 2 Filed 07/06/2005 Page 4 of 4
A WHEREFORE, the United States requests that the Court issue -
_ l . an -Order, lin the form, appended. he:eu¤,i appointing na U
U Commissioner in order to execute the request for assistance.
l l Respectfully submitted,
._ · COLM F. CONNOLLY t U
- it d State? At rn y
` _ ' BY: {
p — Richard G. A drews l
p · Assistant U.S. Attorney
Delaware Bar I.D. No.2l99
- 1007 N. Orange Street · -
· _ ` A Wilmington, DE 19801
i _ . (302) 573—6277
Dated: ?.,{,,,/Of