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

- . Case 1:05-mo¥00256.-GIVIS Docu.ment2 n Failed 12/21/2005 _ Page1 of3
8 IN THE UNITED STATES DISTRICT COURT
· -FOR THE DISTRICT OF DELAWARE
n IN RE LETTER OF REQUEST ) ii ` ·_ I
FROM LITHUANIA ‘ - ) _ ·
- . IN THE MATTER OF I _ }_ _Misc. No. 05-
‘. VITALTJ LEPESA t _ ) -. - -
· GOVERNMENT'S MEMORANDUM OF LAW
A _ IN SUPPORT OF APPLICATION FOR ORDER
s A This memorandum of law is submitted in support of the U
Application for an Order pursuant to Title 28, United States
_. ‘ ` Code, Section 1782, in order to execute a letter of request from
- Lithuania. A copy of the translation is attached. l
‘ _FACTUAL BACKGROUND: n '. I
t _ This investigation is being conducted by the Lithuanian
authorities who are investigating a case of alleged fraud. 8
. 'EVIDENCE SOUGHT: · i‘ _ I .
A - The Lithuanian authorities seek information from the
Delaware Secretary of Statets Office- The authority for this S
Court to accede to—this request is contained in Title 28, United
l `States Code, Section 1782, which states in part: n
(a) The district court of the district in which a person n
_ I resides or is found may order him to give his testimony
. or statement or to produce a document or other thing for
‘ A use in a lproceeding_ in ·a foreign or international ‘ .
` · tribunal, including criminal investigations conducted
` · before formal accusation. The order may be made pursuant
_· _ y to a letter rogatory -issued,l or request made, by a
H ·_ foreign or international tribunal or upon the application .
_ ‘ _ of any Hinterested ypersont-andC 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 s
‘ _ the practice and procedure of the foreign country or the ¥

B Case1:O5—rnc—O0256-GIVIS Document2- Fiy|ed)12/21/2005 Page2of3
- international tribunal, for taking the testimony or
i ` 7 statement or producing the document or other thing. To
i 7 the-extent that the order does not prescribe otherwise,
the testimony or statement shall be taken, rand the .
i ` document or other thing produced, in accordance with the _
E _ Federal Rules of Civil Procedure. a _
g 7 The proper criteria for determining whether the court
should exercise its discretion in favor of executing the request
n` U are outlined in In Re Request for Judicial Assistance from the
7 _ Seoul District Criminal Court, 555 F.2d 720, 723 (9th Cir. l977)
l _ ‘(citation omitted):. l _ nal C _ ` y
Q Under the statute the only restrictions ' n
_ explicitly stated are that the request be
made by a .foreign or international 7 7
tribunal,‘ and that the testimony or
Z ` material requested _be yfor use _in a y
’ _ _ proceeding in such a tribunal .... [and]
Q , 7 - that the investigation in connection
; 7 awith which the request is made.must
C relate to a judicial or quasi—judicial
" - C controversy., 1 `-
g Moreover, “ (t)he judicial proceeding for which assistance is
i` ‘ sought ... need not be pending at the time of the request for
assistance; it suffices that the proceeding in the foreign `
C C tribunal and its contours be in reasonable contemplation when
7 r the request is made.” In Re Letter of Reguest from the Crown
- i Prosecution Services of the United Kingdom, 870 F.2d 686, 687 (D.C.
Cir. 1989). _ _ 7 4 _ -__`
The letter of request in this case shows that the 7
f information sought is for use in such proceedings in Lithuania and _
hence the .request comes) well within those circumstances
l . contemplated by Congress in expanding the Federal Courts' authority
` to act in such matters. ln Re Letter of Request from the Crown l

Case 1:05—rnc—00256-GIVIS Document 2 Filed 12/21/2005 Page 3 of 3 I
E . , Prosecution Service of the United Kingdom, 870 F.2d 686, 689—9l _
i (D.C. Cir. 1989); In Re Letters Rogatory from the Tokyo District,
i U Tokyo, Japan, 539 F.2d 1216, 1219 (9th Cir. 1976). Therefore, I A l
l ask this Court to honor the request for assistance.
3 - The reception of letters of request and the appointment of a U
i Commissioner to execute them are matters customarily handled ex
parte, and persons with objections to the request raise those `
objections by moving to quash any subpoenas- issued by the
A Commissioner. Id.i `V i _ ` ei _ A- l .
“ l WHEREFORE, the United States requests that the Court issue an
f l Order, in the form, appended hereto, appointing a Commissioner in
Q _ order to execute the request for_assistance.., n
· ` A n Respectfully submitted, 1
‘ n l- .i‘ ,COLM_F. CCNNOLLY ‘ e . I
United States Attorney
i aff; - o r A l
_ e - ‘7 Richard G. ndrews ‘
y · ‘ Assistant .S. Attorney
7 t ` e Delaware Bar I.D. No.2199
‘ .. 1007 N; Orange Street `
, . `e ` Wilmington, DE 19801-
A e - I (302) 573-6277 _
; Dated;]QJ]JlO$ [ i" __ - __ _ _ _ _ .