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

I I Case1:O5—mc—O0262-GIVIS D0cument2 Fi|ed12/28/2005 Page10f3 _
I D DIN THE UNITED STATES DISTRICT COURT _ `
l I · FOR THE DISTRICT OF DELAWARE
I . IN RE LETTER OF REQUEST ") -‘ · ·-· ‘ I `
Faom Russia _ A ) · ·
. IN THE MATTER OF ; ) ‘ Misc; No. 055
. _ BENHURST PRODUCTS , ) J. _ .
_ GOVERNMENT‘S MEMORANDUM OF LAW -- ‘ .
` IN SUPPORT OF_APPLICATION FOR ORDER
U - This-memorandum of law·is submitted in support of the
_ I Application_for an Order pursuant to Title 28, United States
y Code, Section 1782, in order to execute a letter of request from
n Russia. A copy of the translation is attached. U 8
‘ FACTUAL BACKGROUND: _ . A _ r
‘ This investigation is being conducted by the Russian
l ‘ n" authorities who are investigating a case of alleged fraud. _ -
I EVIDENCE SOUGHT: A I v· ‘_ - I
The Russian authorities seek information from the
Delaware Secretary of State’s Office and a company that may
reside in this District. The authority for this Court to accede n
to this request is contained in Title 28, United States Code, A
_ l Section 1782, which states in part: wc .
8 . (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 other thing for
use in a ·proceeding in ·a foreign or international
I tribunal, including criminal investigations conducted
‘. before formal accusation. _The order may be made pursuant
.- R to a letter rogatory yissued, or request made, by a
` _ foreign or international.tribunal.or upon the application -
T of any interested person and may direct that the `
- ‘testimony or statement be given, or the document or other
. thing be produ-ced, before a person appointed by the
y _ court. _ By virtue of his rappointment, the person
. appointed has power to administer any necessary oath and j

· Case 1:05—mc—00262-GIVIS Document 2 Filed 12/28/2005 Page 2 of 3 ·
_ take the testimony or statement.7 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, l
— j the- testimony or_ statement shall be taken, and the I
document or other thing produced, in 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
Care outlined in In Re Request-for Judicial Assistance from the
7 _Seoul District Criminal Court, 555`F.2d 720, 723 (9th Cir. 1977)
(citation omitted): ,_ : 9
_- . _Under the statute the only restrictions ‘
explicitly stated are that the request be
made by a foreign or international ‘
- tribunal, and .that) the testimony or _ --
material requested. be for use in a
‘ proceeding in such a tribunal .... [and] _
_that the investigation in connection
with which the request is made must
· _ _ relate to a judicial or quasi—judicia1 .
controversy._ _ y y
_ ‘ 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 U
‘ tribunal and its contours be in reasonable contemplation when
the request is made.” In Re Letter of Request from the Crown
‘ Prosecution Services of the United.Kingdom, 870 F.2d 686, 687
(D.C. Cir. 1989). · R ‘ 7 l
_ The letter of request in this case shows that the ·
information sought is for_use in such proceedings in Russia and
` hence the- request comes lwell ·within those circumstances

h . ` A-Oase1:O5-mcf-00262-GMS Document? Filed12/28/2005 fPage30f3
q contemplated by Congress in expanding the-Federal Courts' authority ‘
_ to act in such mattersr Tn Re Letter of Request from the Crown
Prosecution Service of the United Kingdom, 870 F.2d 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
. U ask this Court to honor the request-for assistance. U
The reception of letters of request and the appointment of a
· . Commissioner to execute them_are matters customarily handled gg
_ parte, and persons with objections to the request raise those
2 ‘ objections by moving to quashf any subpoenas issued by the
l Commissioner. ld. y I l
. ` WHEREFORE, the United States requests that the Court issue an U
Order, in the·form, appended hereto, appointing a Commissioner in
‘ order to execute the request for assistance. T
l -d Respectfully submitted, U
` W COLMsF. CONNOLLY - I
y _ _0nited 8tate;£;§§§rney
. BY: l g
_ _ _ Richard . Andrews ‘
` _ ~ , Assistant U.S. Attorney . -
A A A Delaware Bar I.D. No.2199
- _ 1007 N. Orange Street y ‘
· flwilmington, DE 19801
I Dated: \g9;[T[Oj;· up i302) 518—6277 I I