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

I _ ‘ . . Case 1:05-mc-00258-KAJ _ -Docurnent2 Filed 12/22/2005 Page1 0f3
IN THE UNITED STATES DISTRICT COURT .
‘ I I FOR THE DISTRICT OF DELAWARE
¥ ‘ IN RE LETTER OF REQUEST_il ) _4‘_
FROM HUNGARY _ ) . _` · “ _
. IN THE MATTER OF · r` }. _ Misc. No. 05- s
‘ ATTILA KULCSAR - ) .
‘: GOVERNMENT'S MEMORANDUM OF LAW
IN SUPPORT OF APPLICATION FOR ORDER y
l This memorandum of law is_submitted in support of the
Application for an Order pursuant to Title 28, United States
Code, Section 1782, in order to execute a letter of request from
Hungary. The translation is_attached. -
3 FACTUAL BACKGROUND: _ -_ H `
This investigation is being conducted by the Hungarian
n authorities who are investigating.alleged embezzlement.
I I EVIDENCE SOUGHT: I I _ p I
The Hungarian authorities seek information from the
_ Delaware Secretary of State’s Office and a corporation that may
_ reside in this District. The authority for this Court to accede
‘ to this request is contained in Title 28, United States Code,
` Section 1782, which states in part: 7
‘ (a) The district court of the district in which a person l
._ _ resides or is found may order him to give his testimony
or statement or to produce·a document or other thing for
_ s use -in a proceeding..in a foreign or_ internationaln
- _ _ tribunal, including criminal investigations conducted ,
-- · before formal accusation. The order may be made pursuant `
- to a letter rogatory issued, ar request made, by a
‘ foreign or international tribunal or upon the application .
_ of any interested person and -may direct that the
p . __ testimony or statement be given, or the document or other
I p 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 7

. 7 Case 1:05-mc-00258-KAJ _Document2 Filed 12/22/2005 Page2of3 _
i _ take the testimony or statement. The order may prescribe .
i 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 lor statement shall be taken, and the
document or other thing produced, in accordance with the
i . Federal Rules of Civil Procedure.
_ The proper criteria for determining whether the court
_should exercise its discretion in favor of executing the request l
l _are outlined in In Re Request for Judicial Assistance from the
7 Seoul District Criminal Court, 555`F,2d·720, 723 (9th Cir. l977) U
`/· (citation omitted): ni _Q F l
‘Under the statute the only restrictions ·
‘ explicitly stated are that the request be
- . made by a foreign or international
y ` j tribunal, and _that thee testimony or l -
- _ material requested. be for use in .a ·
proceeding in such a tribunal .... [and]
ythat the investigation in connection
` - with which the request is made must _
F relate to_a judicial or quasi—judicial ·
controversy. - F F
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
t tribunal and its contours be in reasonable contemplation when
7 the request is made.” In Re Letter of Request from the Crown U
‘Prosecution Services of the United Kinqdom, 870 F.2d 686, 687 n
’ (D.C. Cir._l989). The letter of request in this case shows that .
the information sought is for use in such proceedings in Hungary - n
_ and hence _the request comesr well within those circumstances
. contemplated by Congress in expanding the Federal Courts' authority
to act in such matters., In Re Letter of Request from the Crown ·

. Case 1:05-mc-00258-KAJ y Doeurnent 2 Filed 12/22/2005 Page 3 of 3 I
_ Prosecution Service of the Uhitéd Kingdom, 870 F.2d 686, 689-91
I (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 assistance. ·
U - The reception of letters of request and the appointment of a
Commissioner to execute them are matters customarily handled ex l
parte, and persons with objections to the request raise those
objections by moving to quash any subpoenas issued by the
U Commissioner. Id.- _‘ ‘ .' - ` -
WHEREFORE, the United States-requests that the Court issue an
- Order, in the form, appended hereto, appointing a Commissioner in
l order to execute the request for assistance.
‘ an ‘ I ‘ - Z _ I Respectfully submitted,
_ l -3 -COLM F. CONNOLLY
. _ United States Attorney
7 ‘ I _ . BY; _ r ` -
_ ` Richard G. Andrews n .
- _ y Assistant_ .S. Attorney
? _ , Delaware Bar I.D. No.2l99 -
‘ ` ‘ _= _l007 N. Orange Street -
I ‘ g Iwilmington, DE 19801
- _ (302) 573-6277
Dated: 'QASGJOQ ` - ‘ l