FILED
JAN 19 2011
FOR PUBLICATION
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re the Matter of the Search of No. 09-35096
THE PREMISES LOCATED AT 840 D.C. No. 08-CV-01402-JLR
140TH AVENUE NE, BELLEVUE,
WASHINGTON, OPINION
and
In re
REQUEST FROM THE RUSSIAN
FEDERATION PURSUANT TO THE
TREATY BETWEEN THE UNITED,
STATES OF AMERICA AND THE
RUSSIAN FEDERATION ON MUTUAL
ASSISTANCE IN CRIMINAL
MATTERS IN THE MATTER OF
ARKADI A. GONTMAKHER.
UNITED STATES OF AMERICA,
Petitioner - Appellee,
v.
GLOBAL FISHING, INC.; and ARKADI
A. GONTMAKHER,
Respondents - Appellants.
Appeal from the United States District Court
for the Western District of Washington
James L. Robart, District Judge, Presiding
Argued and Submitted July 14, 2010
Seattle, Washington
Before: REINHARDT, GRABER, and PAEZ, Circuit Judges.
Opinion by Judge Graber
GRABER, Circuit Judge:
The Russian government sought the aid of the United States government,
pursuant to a bilateral treaty, in its criminal investigation and prosecution of
Appellant Arkadi A. Gontmakher for illegal crabbing. The district court issued a
subpoena for certain documents in the possession of Appellant Global Fishing, Inc.
Appellants moved for a protective order that effectively would have quashed the
subpoena, arguing that the Russian government’s investigation and prosecution of
Gontmakher were corrupt and illegal. The district court denied the motion, and we
affirm.
FACTUAL AND PROCEDURAL HISTORY
Congress long ago authorized parties to request legal assistance from the
federal courts in the collection of evidence for use in a foreign proceeding.
2
Originally enacted in the mid-19th century, the statute now codified at 28 U.S.C.
§ 1782 permits federal courts to provide such assistance. See, e.g., Intel Corp. v.
Advanced Micro Devices, Inc., 542 U.S. 241, 247–49 (2004) (discussing the
history of the statute at some length). Section 1782, in its current form, states:
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 investigations 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 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, and the
document or other thing produced, in accordance with the Federal
Rules of Civil Procedure.
A person may not be compelled to give his testimony or
statement or to produce a document or other thing in violation of any
legally applicable privilege.
28 U.S.C. § 1782(a).
To invoke § 1782 and obtain federal-court assistance, the requesting entity
presents a written request known as a "letter rogatory" (or, if presented by an
3
"interested person," known as a "letter of request") to the applicable federal district
court. See generally In re Comm’r’s Subpoenas, 325 F.3d 1287, 1290 (11th Cir.
2003), abrogation in other part recognized by In re Clerici, 481 F.3d 1324, 1333
n.12 (11th Cir. 2007). As it works today, both foreign governments and private
parties, including corporations and natural persons, can make requests for use in
both underlying civil lawsuits and underlying criminal prosecutions. See, e.g.,
Intel, 542 U.S. at 246 (request by private corporation for use in underlying civil
lawsuit); In re Letter of Request from Crown Prosecution Serv. of United
Kingdom, 870 F.2d 686, 687 (D.C. Cir. 1989) (request by foreign government for
use in underlying criminal investigation).
Over the years, the courts have interpreted § 1782 as imposing certain
absolute requirements on the request for assistance. For instance, courts
interpreted an earlier version of the statute to require that the foreign nation be a
party to the proceeding. Intel, 542 U.S. at 248. In the 20th century, Congress
amended the statute several times, each time removing more of the absolute
restrictions on the courts’ ability to provide assistance. See, e.g., id. at 247–48 ("In
1948, Congress substantially broadened the scope of assistance federal courts
could provide for foreign proceedings."); United States v. Sealed 1, Letter of
Request for Legal Assistance from Deputy Prosecutor Gen. of Russian Fed’n, 235
4
F.3d 1200, 1203–05 (9th Cir. 2000) (discussing the broadening effect of the 1948,
1949, 1964, and 1996 amendments).
One of the important congressional purposes in broadening the scope of
federal-court assistance was to encourage reciprocity by other nations. See, e.g.,
United Kingdom, 870 F.2d at 690 ("[T]he expectation or hope was that by making
assistance generously available through the good offices of United States officials
and courts, our country would set an example foreign courts and authorities could
follow when asked to render aid to United States courts, authorities, and
litigators."); John Deere Ltd. v. Sperry Corp., 754 F.2d 132, 135 (3d Cir. 1985)
("‘It is hoped that the initiative taken by the United States in improving its
procedures will invite foreign countries similarly to adjust their procedures.’"
(quoting the Senate Report for the 1964 amendment)). By providing broad
assistance to foreign nations and tribunals via § 1782, the United States encourages
foreign nations and tribunals to do the same, which benefits the United States
government.
The absolute requirements under § 1782 are only part of the story, however.
The courts have stressed that, even if those requirements are met, a district court
still retains the discretion to deny a request. See, e.g., Intel, 542 U.S. at 264 ("As
earlier emphasized, a district court is not required to grant a § 1782(a) discovery
5
application simply because it has the authority to do so." (citation omitted)).
"Congress gave the federal district courts broad discretion to determine whether,
and to what extent, to honor a request for assistance under 28 U.S.C. § 1782."
Four Pillars Enters. Co. v. Avery Dennison Corp., 308 F.3d 1075, 1078 (9th Cir.
2002); accord In re Clerici, 481 F.3d at 1331; Edelman v. Taittinger (In re
Edelman), 295 F.3d 171, 181 (2d Cir. 2002); Al Fayed v. United States, 210 F.3d
421, 424 (4th Cir. 2000). The courts have described a wide range of potentially
applicable factors to consider in making that discretionary determination. See, e.g.,
In re Request for Assistance from Ministry of Legal Affairs of Trinidad & Tobago,
848 F.2d 1151, 1156 (11th Cir. 1988) (holding that the district court should deny
the request if the district court "suspects that the request is a ‘fishing expedition’ or
a vehicle for harassment"), abrogated in other part by Intel, 542 U.S. at 259. The
Supreme Court has held that those factors include whether "the person from whom
discovery is sought is a participant in the foreign proceeding"; "the nature of the
foreign tribunal, the character of the proceedings underway abroad, and the
receptivity of the foreign government or the court or agency abroad to U.S. federal-
court judicial assistance"; whether the request "conceals an attempt to circumvent
foreign proof-gathering restrictions or other policies of a foreign country or the
6
United States"; and whether the request is "unduly intrusive or burdensome." Intel,
542 U.S. at 264–65.
In recent decades, the United States has ratified an increasing number of
bilateral treaties with other nations to facilitate legal proceedings, known as mutual
legal assistance treaties or MLATs. See, e.g., In re Comm’r’s Subpoenas, 325 F.3d
at 1290 (discussing an MLAT with Canada, ratified in 1989); United States v.
Erato (In re Subpoena Issued to Erato), 2 F.3d 11 (2d Cir. 1993) (discussing an
MLAT with the Netherlands, signed in 1981); In re Request from Kasper-
Ansermet, 132 F.R.D. 622 (D.N.J. 1990) (discussing an MLAT with Switzerland,
ratified in 1976).1 As their names suggest, these treaties provide for bilateral,
mutual assistance in the gathering of legal evidence for use by the requesting state
in criminal investigations and proceedings. Viewed through the lens of reciprocity,
MLATs represent a direct approach to achieving reciprocity with other nations, in
addition to the indirect approach taken by congressional expansion of the scope of
§ 1782. The ratification of MLATs in recent decades can be seen as yet another
step toward the goal of greater legal assistance by, and for, other nations, at least
1
The parties have also directed our attention to MLATs with the Phillippines
(ratified in 1994), Mexico (ratified in 1987), and Italy (ratified in 1982).
7
with respect to requests by foreign governments for use in underlying criminal
investigations and proceedings.
At issue here is the MLAT between the United States and Russia, which
entered into force after ratification by both parties in 2002. Treaty Between the
United States of America and the Russian Federation on Mutual Legal Assistance
in Criminal Matters ("US-Russia MLAT"), June 17, 1999, S. Treaty Doc. No. 106-
22. In general, the treaty provides that, upon request, the two nations will provide
"comprehensive mutual legal assistance in criminal matters." US-Russia MLAT,
art. 1, ¶ 1. Legal assistance includes "providing documents, records, and other
items." Id. art. 2(2). The treaty specifies that the receiving party "shall promptly
execute the request," id. art. 7, ¶ 1, and that "[t]he competent authorities of the
Requested Party shall have the authority to issue subpoenas, search warrants, or
other orders necessary for the execution of requests," id. art. 7, ¶ 3.
In December 2007, the Russian government requested legal assistance from
the United States pursuant to the US-Russia MLAT. The request concerned the
Russian government’s criminal investigation and prosecution of Appellant
Gontmakher, a United States citizen and president of Appellant Global Fishing. In
September 2007, Russian authorities had arrested Gontmakher in Moscow, filed
criminal charges against him in Moscow City Court, and detained him pursuant to
8
those charges. Pertinent to this appeal, the Russian government’s request for legal
assistance included the production of certain documents then in the possession of
Global Fishing.
The United States government applied to the district court for the
appointment of co-commissioners to execute the request for legal assistance. The
United States government petitioned the court "pursuant to Article 7 of the
[MLAT], 28 U.S.C. § 1782, and the Court’s own inherent authority" to appoint two
named co-commissioners "to collect evidence from witnesses and to take such
other action as is required to execute the attached request from Russia made
pursuant to said Treaty." That attached request details the many pieces of evidence
sought by Russia. The district court granted the application and appointed co-
commissioners from the United States Attorney’s office.
In August 2008, the commissioners subpoenaed Global Fishing to produce
the documents.2 Appellants moved for a protective order. Appellants urged the
district court to quash the subpoena pursuant to its discretionary authority under 28
U.S.C. § 1782. Specifically, they argued that "the Court should enter a protective
2
The same day, the United States Attorney’s office also subpoenaed Global
Fishing to produce the identical documents on behalf of a domestic grand jury, in
furtherance of a criminal investigation by the United States. Global Fishing’s
compliance with that subpoena is not at issue in this appeal.
9
order relieving Global [Fishing] of any obligation to produce documents for use in
the Russian investigation." They contended that the Russian proceedings are
corrupt and illegal in a variety of ways, both in general and with respect to the
specific proceedings against Gontmakher. Appellants argued that, because the
United States invoked § 1782, the district court retained its usual broad discretion
to deny the request for assistance.
The United States countered that, because the request for assistance arose
under the US-Russia MLAT and not directly under § 1782, the district court lacked
discretion to quash the subpoena. According to the United States, the US-Russia
MLAT superseded the substantive aspects of § 1782, including the district court’s
"broad discretion" to deny requests.
After hearing oral argument, the district court denied the motion for a
protective order. The court held that it lacked discretion under § 1782 but that the
subpoena nevertheless must meet minimum constitutional standards. The court
held that the request here did not offend the United States Constitution and
therefore denied the motion for a protective order. Appellants timely appeal.
DISCUSSION
A. Appellate Jurisdiction Over the District Court’s Order
10
Before reaching the parties’ arguments on the merits, we must determine
whether we have jurisdiction. We have appellate jurisdiction over the district
court’s order denying the motion for a protective order only if the order is "final"
under 28 U.S.C. § 1291.
In the domestic criminal context, we lack interlocutory appellate jurisdiction
over an order denying a motion to quash a subpoena, because the order is non-
final. Silva v. U.S. Dist. Court (In re Grand Jury Subpoena Issued to Bailin), 51
F.3d 203, 205 (9th Cir. 1995). "In order to appeal the order, the person
subpoenaed must refuse to comply and contest the validity of the subpoena by
appealing a contempt determination." Id. The person subpoenaed undoubtedly
faces a difficult choice—comply and lose the right to appeal, or refuse to comply
and possibly suffer contempt sanctions. But the Supreme Court has "consistently
held that the necessity for expedition in the administration of the criminal law
justifies" that rule. United States v. Ryan, 402 U.S. 530, 533 (1971) (citing
Cobbledick v. United States, 309 U.S. 323 (1940); Alexander v. United States, 201
U.S. 117 (1906)). Balancing the witness’ interest with the need for expedition in
the underlying criminal case, the Court has held that the witness’ ability to force
review by refusing to comply with the subpoena "is adequate for his protection
11
without unduly impeding the progress of the [underlying criminal] case."
Cobbledick, 309 U.S. at 327 (quoting Alexander, 201 U.S. at 121).
But there is an important difference between an appeal from an order
concerning an ongoing domestic criminal case and an appeal from an order
concerning a request under the procedural mechanism of 28 U.S.C. § 1782.3 In a
domestic criminal appeal, the district court’s order enforcing a subpoena is but one
step toward the ultimate resolution of the underlying criminal case; it is not the
"final" step taken by the district court in that criminal case. In a § 1782 appeal,
however, the district court’s subpoena order is the district court’s last, or "final,"
order because, critically, the underlying case in a § 1782 appeal necessarily is
conducted in a foreign tribunal. Once the district court has ruled on the parties’
motions concerning the evidentiary requests, there is no further case or controversy
before the district court.
3
Although this case involves an order issued under both the US-Russia
MLAT and 28 U.S.C. § 1782, we see no difference, for purposes of finality,
between a request arising under both an MLAT and § 1782, as compared to a
request arising under § 1782 only. The treaty does not speak to whether a district
court’s order is final for purposes of appellate jurisdiction. Stated differently, the
government concedes that it obtained the subpoena by invoking the procedural
mechanism of § 1782, and we view the finality analysis as a procedural question,
not a substantive one.
12
For that reason, the courts have permitted appeals from a district court’s
orders under § 1782, even if the complaining party has not subjected himself or
herself to contempt sanctions. The Third Circuit succinctly explained in Bayer AG
v. Betachem, Inc., 173 F.3d 188, 189 n.1 (3d Cir. 1999): "Only the discovery
dispute under 28 U.S.C. § 1782 is occurring in the United States. Therefore,
because the underlying litigation is in [a foreign court], this discovery order is
immediately appealable." In In re Letters Rogatory Issued by Director of
Inspection of Government of India, 385 F.2d 1017, 1018 (2d Cir. 1967), Judge
Friendly explained for the Second Circuit that—like an order enforcing the
subpoenas of independent administrative agencies, an order granting a subpoena in
aid of an extradition proceeding, and an order to appear before the Internal
Revenue Service—an order pursuant to § 1782 is final and appealable. "The
distinction between such cases and the Alexander-Cobbledick line of authority is
that in these instances the proceeding before the district court to compel testimony
stands separate from the main controversy." Id.; see also Kestrel Coal Pty. Ltd. v.
Joy Global Inc., 362 F.3d 401, 403 (7th Cir. 2004) ("Orders [issued under § 1782],
like orders enforcing subpoenas, are final and appealable because they dispose of
all issues in the proceeding.").
13
Our sister circuits have ruled that they have appellate jurisdiction over orders
issued under § 1782 without qualification or exception. Phillips v. Beierwaltes,
466 F.3d 1217, 1220 (10th Cir. 2006); Foden v. Gianoli Aldunate (In re
Application of Gianoli Aldunate), 3 F.3d 54, 57 (2d Cir. 1993); Janssen v. Belding-
Corticelli, Ltd., 84 F.2d 577, 578 (3d Cir. 1936); see also Weber v. Finker, 554
F.3d 1379, 1385 (11th Cir.) (noting, but not reaching, the argument that "a Motion
to Compel under § 1782 is a final, dispositive order because, although there is an
ongoing action in a foreign tribunal, the Motion to Compel is the final order to be
issued by the United States court"), cert. denied, 130 S. Ct. 59 (2009). Our sister
circuits also have held that they have appellate jurisdiction over the district court’s
denial of a motion to quash even when the subject of the subpoena in the federal
case also happens to be a party in the underlying foreign litigation. Kestrel Coal,
362 F.3d at 403; Foden, 3 F.3d at 56–57.
Our own jurisprudence is less absolute. In most cases, we have simply
stated, without clarification or explanation, that we have appellate jurisdiction.
Sealed 1, 235 F.3d at 1203; Advanced Micro Devices, Inc. v. Intel Corp., 292 F.3d
664, 666 (9th Cir. 2002); Okubo v. Reynolds (In re Letters Rogatory from Tokyo
Dist. Prosecutor’s Office), 16 F.3d 1016, 1018 n.1 (9th Cir. 1994); In re Kevork,
14
788 F.2d 566, 569 (9th Cir. 1986); see also Four Pillars, 308 F.3d at 1078
(exercising jurisdiction without explanation).
In a little-cited case decided in 1974, however, we held that, when the
subject of the subpoena in the federal case is also a party to the foreign litigation,
the rule from the domestic criminal context applies: Appellate jurisdiction lies
only if the interested party suffers contempt. In re Letters Rogatory from
Haugesund, Norway, 497 F.2d 378, 380–81 (9th Cir. 1974). We explained a few
years later, in In re Request for Judicial Assistance from Seoul District Criminal
Court, 555 F.2d 720, 722 (9th Cir. 1977), that the exception announced in
Haugesund is narrow: We have appellate jurisdiction so long as the appellant in
the federal case is not the interested party in the underlying foreign proceeding.
Although the government had not challenged our jurisdiction in Seoul, we felt
compelled to explain: "Haugesund, however, is inapplicable because the order
there was directed against a party to the suit in Norway for which the letter
rogatory was issued. Here, the subpoena is directed against a bank, not the
appellant who is the party of interest in the proceeding before the foreign tribunal."
Id.
Here, the subject of the subpoena is Global Fishing, which is not a party to
the underlying criminal case in Russia against Gontmakher. A corporation is a
15
separate legal entity from its employees, including its president. See, e.g.,
Abrahim & Sons Enters. v. Equilon Enters., LLC, 292 F.3d 958, 962 (9th Cir.
2002). The narrow Haugesund exception therefore does not apply. We reject the
government’s argument that we should extend the Haugesund exception to these
circumstances simply because Gontmakher is the president of Global Fishing and
thus Global Fishing has some abstract interest in the Russian criminal proceeding.
Given our narrow interpretation of the Haugesund exception in Seoul, the fact that
we have not mentioned the exception in more than three decades, and the fact that
no other circuit court even recognizes the exception, we are disinclined to expand
its scope here. Accordingly, we hold that we have appellate jurisdiction over the
district court’s order denying the motion for a protective order.4
B. Federal Court Review of Requests under § 1782 and the US-Russia
MLAT
4
We also hold that this appeal is not moot. See Betker v. U.S. Trust Corp.
(In re Heritage Bond Litig.), 546 F.3d 667, 675 (9th Cir. 2008) ("The party
asserting mootness bears a heavy burden of establishing that there is no effective
relief remaining for a court to provide." (alteration and internal quotation marks
omitted)). Although Global Fishing has complied with the subpoena in part, its
lawyer has stated to us that it continues to search its voluminous electronic files for
documents responsive to the subpoena. Reversing the district court’s ruling would
provide some effective relief to Global Fishing, because its ongoing document
review could cease.
16
The parties offer contrasting views on the proper scope of federal court
review in situations such as this one, in which the executive branch has requested
assistance under both § 1782 and the US-Russia MLAT. Appellants contend that,
as with any request under § 1782, the district court must exercise its "broad
discretion" to honor or to deny a request for assistance, Four Pillars, 308 F.3d at
1078, including consideration of the factors discussed by the Supreme Court in
Intel, 542 U.S. at 264. The MLAT is a self-executing treaty which, upon
ratification, required no implementing legislation to take effect within the United
States. A ratified self-executing treaty generally stands on the same footing as a
federal statute, that is, a later-in-time self-executing treaty has the same effect on
an existing federal statute as a later-in-time act of Congress. See Medellin v.
Texas, 552 U.S. 491, 509 n.5 & 518 (2008) (holding that a later-in-time self-
executing treaty supersedes a federal statute and that a later-in-time federal statute
supersedes a treaty). In Appellants’ view, however, nothing in the MLAT
superseded the requirement that district courts must exercise their broad discretion.
The government offers a different interpretation of the MLAT. In the
government’s view, although the US-Russia MLAT incorporated the procedural
mechanism of § 1782 to carry out requests for assistance via the federal courts, the
treaty superseded all the substantive aspects of § 1782, including the discretionary
17
factors discussed by the Supreme Court in Intel. The government argues that the
only substantive limitations on a request originating under the US-Russia MLAT
are the limitations defined by the treaty itself. Accordingly, the federal courts must
execute requests for assistance without consideration of the § 1782 discretionary
factors.
We therefore must determine whether the treaty superseded the statute’s
grant of discretionary authority to the district courts. See Cont’l Ins. Co. v. Fed.
Express Corp., 454 F.3d 951, 954 (9th Cir. 2006) (holding that we review de novo
the interpretation of a treaty). "‘The interpretation of a treaty, like the
interpretation of a statute, begins with its text.’" Abbott v. Abbott, 130 S. Ct. 1983,
1990 (2010) (quoting Medellin, 552 U.S. at 506). "If the plain text is ambiguous,
we look to other sources to elucidate the treaty’s meaning, including the purposes
of the treaty, its drafting history, the postratification understanding of the
contracting parties and the decisions of the courts of other signatories." Hosaka v.
United Airlines, Inc., 305 F.3d 989, 993–94 (9th Cir. 2002) (citation omitted)
(citing El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 167–76
(1999)). "Throughout, ‘it is our responsibility to give the specific words of the
treaty a meaning consistent with the shared expectations of the contracting
parties.’" Id. at 994 (quoting Air France v. Saks, 470 U.S. 392, 399 (1985)).
18
Neither Appellants nor the government asserts that the meaning of the
MLAT’s text is plain. We agree that there is no plain meaning here. Although the
text of some provisions provides mild support for one interpretation or the other,
no provision addresses, or even purports to address, the question disputed
here—the scope of federal court review of MLAT requests. The closest provision
in this regard is the first sentence of Article 7, paragraph 3, which states:
"Requests shall be executed in accordance with the laws of the Requested Party
except if this Treaty provides otherwise." But that sentence is ambiguous. The
phrase "executed in accordance with the laws of the Requested Party" could mean
"subject to the procedural mechanisms and substantive limitations of the laws of
the Requested Party." Or, at least as plausibly, the phrase could mean only "carried
out in accordance with the procedural mechanisms of the Requested Party." The
term "executed" suggests a procedural mechanism only, see Black’s Law
Dictionary 567 (6th ed. 1990) (defining "execute" as, in part, "to carry out
according to its terms"), but its meaning in context is far from plain. We turn,
then, to other indicators of the treaty parties’ intent, nearly all of which strongly
support the government’s interpretation.
1. Deference to the Executive Branch
19
"It is well settled that the Executive Branch’s interpretation of a treaty ‘is
entitled to great weight.’" Abbott, 130 S. Ct. at 1993 (quoting Sumitomo Shoji
Am., Inc. v. Avagliano, 457 U.S. 176, 185 (1982)). In addition to being entitled to
"great weight," the government’s reasonable interpretation of this treaty also finds
strong support in a common-sense argument concerning the intent of the treaty
parties. The § 1782 process has always been available to the Russian government.
If the treaty maintains the same substantive limitations as § 1782, then the Russian
government had little to gain by agreeing to the treaty, and the treaty would
accomplish much less under Appellants’ view than under the government’s view.
In other words, it seems unlikely that the parties to the treaty intended that requests
for assistance would be subject, as before, to the same discretionary factors under
§ 1782.
2. Harmony in Results
We have adopted the view of the Restatement (Third) of Foreign Relations
Law § 325 cmt. d (1987) that "[t]reaties that lay down rules to be enforced by the
parties through their internal courts or administrative agencies should be construed
so as to achieve uniformity of result despite differences between national legal
systems." See United States v. Lombera-Camorlinga, 206 F.3d 882, 888 (9th Cir.
2000) (en banc) ("By refusing to adopt an exclusionary rule, we thus promote
20
harmony in the interpretation of an international agreement." (citing Restatement
(Third) of Foreign Relations Law § 325 cmt. d)). Here, the parties agree that the
Russian government does not have an analog to § 1782; the Russian courts have
not been vested with discretionary authority to deny a request for assistance. The
government’s view therefore supports "harmony in the interpretation" of the
MLAT, whereas Appellants’ view creates discord.
3. Technical Analysis
The technical analysis of the treaty that the United States Department of
Justice and Department of State prepared, which the President submitted to the
Senate at the same time that he asked for the Senate’s ratification, supports the
government’s view. See In re Comm’r’s Subpoenas, 325 F.3d at 1297–98
(referring to a technical analysis in interpreting a treaty); United States v. Davis,
767 F.2d 1025, 1029–30 (2d Cir. 1985) (same). The technical analysis does not
address the issue of the procedure/substance distinction directly. But several parts
of the technical analysis suggest that the government’s view is correct. For
instance, the first page states that "[i]t is anticipated that the Treaty will be
implemented in the United States pursuant to the procedural framework provided
by Title 28, United States Code, Section 1782." (Emphasis added.) As another
example, in footnote 2, the technical analysis discusses a particular substantive
21
point and concludes that "this paragraph [of the Treaty] accords the courts broader
authority to execute requests than does Title 28, United States Code, Section 1782,
as interpreted [by some courts]." That part of the analysis makes sense only if the
authors viewed the treaty as expanding the ability of Russia to obtain judicial
assistance beyond the reach of requests under § 1782. The same is true of the
technical analysis’ discussion of Article 10, paragraph 3, where the authors note
that "[t]his is consistent with the approach taken in Title 28, United States Code,
Section 1782." If the substantive provisions of § 1782 controlled, that statement
would be meaningless.
4. Article 4 of the US-Russia MLAT
Consideration of Article 4 of the treaty strongly supports the government’s
view. That article specifies three—and only three—grounds for denying a request:
an exception for military crimes, an exception for security or "other essential
interests," and an exception for requests that do not conform to the treaty. The use
of three specified reasons for denial in a closed list strongly suggests that those
reasons are the only permissible reasons for denying a request under the treaty.
Indeed, the technical analysis confirms that view: Article 4 "specifies the limited
classes of cases in which assistance may be denied under the Treaty." Under
Appellants’ view, however, an additional, unstated basis for denial exists: United
22
States courts may choose to exercise their broad discretion to deny the request,
evaluating a wide range of equitable considerations. That view is hard to reconcile
with the text of Article 4 and the technical analysis’ straight-forward reading of
that text. Not only is that view hard to reconcile with the text, but it also could
create tension with foreign affairs by effectively requiring the United States to
deny a treaty request for a reason other than one specified in Article 4.
5. Liberal Construction
A treaty "should generally be construed liberally to give effect to the
purpose which animates it and . . . even where a provision of a treaty fairly admits
of two constructions, one restricting, the other enlarging, rights which may be
claimed under it, the more liberal interpretation is to be preferred." United States
v. Stuart, 489 U.S. 353, 368 (1989) (alterations and internal quotation marks
omitted). Here, Article 1, paragraph 1, states: "The Parties shall provide to each
other, in accordance with this Treaty, comprehensive mutual legal assistance in
criminal matters." The government’s view "animates" the purpose of the
treaty—comprehensive mutual legal assistance in criminal matters—whereas
Appellants’ view "restrict[s]" the "rights which may be claimed under it." Stuart,
489 U.S. at 368.
6. Our Sister Circuit’s Interpretation
23
The Eleventh Circuit reached the same conclusion, for many of the same
reasons, when it interpreted the US-Canada MLAT. In re Comm’r’s Subpoena,
325 F.3d at 1292–1304. We find that court’s conclusion equally applicable here:
We conclude that the most logical construction of the . . . MLAT is
that the Treaty partners intended to utilize the established procedures
set forth in the existing laws of the Requested State to execute the
treaty requests, rather than to subject each and every treaty request to
any and all limitations of existing law of the Requested State. That is,
the Treaty utilizes § 1782 as a procedure for executing requests, but
not as a means for deciding whether or not to grant or deny a request
so made.
Id. at 1297.
7. Conclusion
Almost every indicator of the treaty-parties’ intent favors the government’s
view. Appellants are correct that the treaty does not expressly specify the
procedure/substance distinction. Appellants are also correct that such a distinction
is an unusual method of interpreting a law. But, viewed in the larger context of the
treaty, and with due deference to the executive branch, the government offers the
more reasonable interpretation. We hold that requests for assistance via the US-
Russia MLAT utilize the procedural mechanisms of § 1782 without importing the
substantive limitations of § 1782. In particular, the parties to the treaty intended
24
that the district courts would not possess the normal "broad discretion," conferred
by § 1782, to deny requests for assistance.
We cannot help but note that our conclusion may carry few practical
implications. The § 1782 discretionary factors include, primarily, whether "the
person from whom discovery is sought is a participant in the foreign proceeding";
"the nature of the foreign tribunal, the character of the proceedings underway
abroad, and the receptivity of the foreign government or the court or agency abroad
to U.S. federal-court judicial assistance"; whether the request "conceals an attempt
to circumvent foreign proof-gathering restrictions or other policies of a foreign
country or the United States"; and whether the request is "unduly intrusive or
burdensome." Intel, 542 U.S. at 264–65. In the context of a request under the
MLAT, however, almost all of those factors already were resolved by the executive
branch of government when it signed the treaty and by the Senate when it ratified
the treaty. For instance, the receptivity of the foreign government is clear, because
it is the foreign government that is making the request. For the same reason, one
knows that the request does not violate the policies of the foreign country. As for
the factors that might still depend on the facts of the particular case, such as
whether the request is burdensome, it is reasonable to conclude that the United
States government effectively has weighed those factors by agreeing to the MLAT
25
and by agreeing to the particular request at issue. In this regard, it should be
remembered that, before the request reaches the district court, it has proceeded
through the executive branch, which has the right to deny the request for the
reasons stated in the treaty and which has the right to request modifications in the
event that the request is too burdensome.
In sum, many of the § 1782 discretionary factors would weigh automatically
in favor of granting the request, and many would no longer require (or permit)
consideration by the courts because they already have been considered by a co-
equal branch of the United States government. When a request for assistance
under the MLAT arrives before a district court, then, almost all the factors already
would point to the conclusion that the district court should grant the request.
C. Constitutional Limitations
Our conclusion that the parties to the treaty intended to remove the district
court’s traditional "broad discretion" does not end the inquiry. The government
argues that, upon receiving an MLAT request for assistance from the executive
branch, the district court has no choice but to comply with that request. According
to the government, the constitution imposes no limits on what the executive branch
may require the courts to do in that situation. We disagree.
26
Treaties, like statutes, are subject to constitutional limits, including the
separation of powers and the guarantee of due process. See Am. Ins. Ass’n v.
Garamendi, 539 U.S. 396, 416 n.9 (2003) (holding that treaties are "[s]ubject . . . to
the Constitution’s guarantees of individual rights"); cf. United Kingdom, 870 F.2d
at 693 n.8 (holding, in the context of a § 1782 request, that "[t]he district court's
discretion is of course subject to the U.S. Constitution"). The enforcement of a
subpoena is an exercise of judicial power. According to the government, the
executive branch has the authority to exercise that power directly, because the
district court is required, by virtue of an MLAT request, to compel the production
of requested documents. The government’s position leads to the inescapable and
unacceptable conclusion that the executive branch, and not the judicial branch,
would exercise judicial power. Alternatively, the government's position suggests
that by ratifying an MLAT, the legislative branch could compel the judicial branch
to reach a particular result—issuing orders compelling production and denying
motions for protective orders—in particular cases, notwithstanding any concerns,
such as violations of individual rights, that a federal court may have. This too
would be unacceptable. Cf. United States v. Klein, 80 U.S. (13 Wall.) 128, 146–47
(1871).
27
The Constitution's separation of powers does not permit either the legislative
or executive branch to convert the judicial branch into a mere functionary. Instead,
the Constitution requires that "no provision of law ‘impermissibly threaten[] the
institutional integrity of the Judicial Branch.’" Mistretta v. United States, 488 U.S.
361, 383 (1989) (quoting Commodity Futures Trading Comm’n v. Schor, 478 U.S.
833, 851 (1986)). At a minimum, that integrity requires that federal courts be able
to consider constitutional challenges to the action they are requested to compel,
and to refrain from participating in action that would violate the constitution. We
therefore hold that, in the context of an MLAT request, a district court may not
enforce a subpoena that would offend a constitutional guarantee.
We leave for another day the elucidation of the precise scope of applicable
constitutional limits. For present purposes, we find it sufficient to describe certain
broad outlines. At a minimum, the Constitution requires that a request not be
honored if the sought-after information would be used in a foreign judicial
proceeding that "depart[s] from our concepts of fundamental due process and
fairness." Seoul, 555 F.2d at 724. But the Constitution does not require us to
ensure that a foreign government offers the same protections as does our
Constitution before assisting that government. Neely v. Henkel, 180 U.S. 109,
122–23 (1901); Kamrin v. United States, 725 F.2d 1225, 1228 (9th Cir. 1984). We
28
also think it clear that the Constitution does not mandate consideration of the
various discretionary factors developed by the courts as reflecting congressional
intent with respect to § 1782. Nothing in our case law suggests that Congress
necessarily would offend the Constitution if it amended § 1782, as Congress has
done repeatedly in the past century, to reduce the discretionary factors that the
courts must consider. Both the § 1782 discretionary factors and the wide array of
our own constitutional guarantees grant more than the minimum requirements of
due process for purposes of granting assistance pursuant to an MLAT request.
We can conceive of situations in which the Constitution might require the
district court to deny a request for assistance. For example, if credible evidence
demonstrated that compliance with a subpoena would lead to an egregious
violation of human rights, such as torture, then the Constitution may require the
courts to deny assistance. The court’s role in this context is limited, however, and
must be tempered by the recognition that "the field of foreign affairs" is one that
"the Constitution entrusts to the President and the Congress." Zschernig v. Miller,
389 U.S. 429, 432 (1968).
Here, Appellants assert that we must deny assistance for two reasons: First,
the Russian system of criminal justice, in general, is corrupt. Second, the Russian
government failed to observe certain time limits set by Russian law to investigate
29
and prosecute Gontmakher. Appellants do not argue that the production of
documents itself will cause some egregious outcome. Rather, they argue that
separation-of-powers and due-process concerns preclude the judicial branch from
furthering these allegedly corrupt and illegal proceedings. Having reviewed the
record, we are satisfied that the enforcement of the subpoena at issue here does not
offend the Constitution.
The Constitution assigns to the political branches the primary responsibility
of weighing general complaints about a nation’s criminal justice system. By
signing and ratifying the US-Russia MLAT, and by agreeing to honor Russia’s
request in this case, the political branches of our government have determined that
the Russian system of criminal justice in general comports with minimum
constitutional guarantees. We will not upset that decision on the basis of
Appellants’ broad unsupported allegations that the Russian criminal justice system
as a whole is corrupt.
With respect to Appellants’ complaints concerning the treatment of
Gontmakher specifically, Appellants’ arguments amount to no more than a
complaint that, in their view, the Russian authorities have violated the Russian
Code of Criminal Procedure by failing to produce evidence within a specified time
period. Even assuming that their allegation is correct, granting the Russian
30
government’s request for documents would not, for that reason alone, violate our
Constitution’s separation of powers or guarantee of due process. Just as a violation
of state law does not necessarily offend our Constitution, Parle v. Runnels, 387
F.3d 1030, 1045 (9th Cir. 2004); Sweaney v. Ada County, 119 F.3d 1385, 1391
(9th Cir. 1997), so, too, a violation of foreign law does not necessarily offend our
Constitution. Neither fundamental notions of due process and fairness nor
separation-of-powers concerns are implicated by this alleged procedural violation
of Russian law, which concerns timing only.
In conclusion, we hold that compliance with the Russian government’s
request for documents from Global Fishing does not offend the Constitution.
AFFIRMED.
31
COUNSEL
Angelo J. Calfo and Lyle A. Tenpenny, Yarmuth Wilsdon Calfo, PLLC,
Seattle, Washington; Irwin H. Schwartz, Law Offices of Irwin H. Schwartz,
Seattle, Washington; and David V. Marshall, Davis Wright Tremaine LLP, Seattle,
Washington, for Respondents-Appellants.
James D. Oesterle and Michael S. Morgan, Assistant United States
Attorneys, Seattle, Washington, for Petitioner-Appellee.
32