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

. · Case 1:05-mc—00136-JJF Document2 Filed 07/06/2005 Page1 of4
—. s I - _ IN THE UNITED STATES DISTRICT COURT _ A
. ` FOR THE DISTRICT OF DELAWARE -
I I IN RE LETTER OF REQUEST } A A
FROM RUSSIA )
Q IN THE MATTER OF ) Misc. No. 05-
‘ PODOLSKIY _ ) . .
_ ·- .· GOVERNMENT'S MEMORANDUM OF LAW
_ A IN SUPPORT OF APPLICATION FOR ORDER
R This memorandum of law is submitted in support of _
l. the Application for an Order pursuant to Title 28, United U l
_ States Code, Section l782, in order to execute a letter of
‘ — __ U request from Russial A copy of the translation is attached.
- - FACTUAL BACKGROUND: I ‘
l This investigation is being conducted by the Russian
. authorities who are investigating a case of alleged tax ‘
_ evasion and tax fraud.
EVIDENCE SOUGHT: . . * g
l The Russian authorities seek information from the
Delaware Secretary of State's Office and a company in this _
- U District. The authority for this Court to accede to this ‘
_ ` . request is contained in Title 28, United States Code, Section
U 1782, which states in part: ` _ l *
_` (a) The district court of the district in which a person
_ resides or is pfound 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 -p
· international tribunal, including criminal `

Case 1:05-mc-00136-JJF Document 2 Filed 07/06/2005 Page 2 of 4 - ‘
· investigations conducted before formal accusation.
The order may be wade 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,
C before a person appointed by the court. By virtue of y
_ - his appointment, the person appointed has power to
- administer any necessary oath and take the testimony
_ l 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 ori producing _the document or other _thing.
To' the extent that the order does not prescribe
‘ _ g ‘ otherwise, the testimony or statement shall be taken,
lp r _and_ the document or other thing produced, in
____ accordance with the Federal Rules of Civil Procedure.
` The proper criteria for determining whether the court U
C should exercise its discretion in favor of executing the request
·- are outlined in In Re Reqgest-for Judicial Assistance from the
- l Seoul District Criminal Court, 555 F.2d 720, 723 (9th Cir. 1977)-
(citation omitted):
_ T Under the statute the only restrictions
" ‘ explicitly stated are that the request
_ _ _, be node knr a foreign cnr international
T _ ` tribunal, and that the testimony or
_ material requested be for use in a
. _ ‘ ` proceeding in such a tribunal .... [and] d _
_. I that the investigation in connection
- with which the request is made must `
_ - relate to a judicial or quasi—judicial
_· controversy. .
U ._ Moreover, “ (t)he judicial proceeding for which assistance is l .
L - sought ... need not be pending at the time of the request for
assistance; it suffices that the proceeding in the foreign C
tribunal and its_contours be in reasonable contemplation when

I I I Case 1F05-mac-00136-JJF Document 2 Filed 07/06/2005 -Page 3 of 4
= - the request is made.” In Re better of Request from the Crown
. Prosecution Services of the United Kingdom, 870 F.2d 686, 687
(D.C. Cir. 1989). · _
- _ l . The letter of request in this case shows that the
i p information sought is for use in such proceedings in Russia and
y an hence the request comes well within` those circumstances U
all _contemplated by Congress in expanding the Federal Courts' .
· _ authority to act in such matters. In Re Letter of Regyest from
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, 539 F.2d 1216, 1219 (9th Cir.
_ { 1976). Therefore, I ask this Court to honor the request for
l _ assistance. . _- U. `
l _j ‘ The reception of letters of request and the appointment of U
’_ a Commissioner to execute them are matters customarily handled
- _· _ eg parte, and persons with objections to the request raise those
_ objections by moving. to lquash any subpoenas_ issued by the
U U 2 Commissioner. Id. U k

. Case 1:05-mc-00136-JJF Document-2 Filed 07/06/2005 Page 4 of 4 `
_ WHEREFORE, the United States requests that the Court issue ` A
an Order, ini the form, appended hereto, appointing a _
l `.- Commissioner in order to execute the request for assistance. A
n C Respectfully submitted, A
Q i COLM F. CONNOLLY` ‘
- A · United States Attorney
l _ l A ` BY; p
‘ g · ‘ Richard G, Andrews A _
. _ _ Assistant U.S. Attorney
· · Delaware Bar I.D. No.2199
` - 1007 N. Orange Street
. Wilmington, DE 19801 ‘
" (302) 573-6277
_. _ Dated: 7'LV05 i