Free MEMORANDUM in Support - District Court of Delaware - Delaware

i _ Case1:05—mc-00070-SLR D0cument2 ‘ Filed 04/13/2005 Page10f3
_ . IN THE UNITED STATES DISTRICT COURT · l .
i._ n FOR THE DISTRICT OF DELAWARE I _
.. _ - IN RE LETTER OF REQUEST ) , .
FROM KAZAKHSTAN ) · l
_ · . IN THE MATTER OF ) Misc. No. 05~
· Y.M.LARIONOV )
. GOVERNMENT'S MEMORANDUM OF LAW
` IN SUPPORT OF APPLICATION FOR ORDER i
i U This memorandum of law is submitted in support of the `
_ Application for an Order pursuant to Title 28, United States
i l Code, Section 1782, in order to execute a letter of request from
_ Kazakhstan. The translation is attached. ‘ - ‘
FACTUAL BACKGROUND: .
This investigation is being conducted by the F
i l _Kazakhstani authorities who are investigating fraud, embezzlement
and breach of trust. _
EVIDENCE SOUGHT: ‘ _ I
I l i U The Kazakhstani authorities seek information from the -"'
U Delaware Secretary of State's Office and an individual that may
‘, reside in this District. The authority for this Court to accede .
` ` ‘ to this request is-contained in Title 28, United States Code, s l
_ _ 'Section 1782, which states in part: - ` _
(a) The district court of the district in which a person-
. resides or is found may order him to give his testimony i
or statement or to produce a document or other thing for
` use in a proceeding in a foreign or international
l ‘ tribunal, including criminal investigations conducted
. ` before formal accusationr The order may be made pursuant
to na letter .rogatory· issued, ‘or request made,. by a 2

- Case 1:05-mc-00070-SLR Document 2 Filed 04/13/2005 Page 2 of 3 3
I I 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
j ` 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
i __ _ 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
3 ‘ document or other thing produced, in accordance with the‘_ `
H ` Federal Rules of Civil Procedure.
_ q p The proper criteria for determining whether the court
should exercise its discretion in favor of executing the request
l rare outlined in In Re_Reggest for Judicial Assistance from the. - `
j Seoul District Criminal Court, 555 F.2d 720, 723 (9th Cir. 1977)
'(citation omitted): _
R · Under the statute the only restrictions _ I n
` explicitly stated are that the request be
made by a foreign or international
3 tribunal, _and that the testimony or
material requested be for use in a
_ proceeding in such a tribunal .... [and]
- · ` that the investigation in connection
W ‘ . with which the request is made must ,
relate to a judicial or quasi—judicial _
_ controversy. .
" 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 tribunal
‘ and its contours be in reasonable contemplation when the request is
d.3 made.” In Re Letter of Request from the Crown Prosecution Services l I h
‘ of the United Kingdom, 870 F.2d 686, 687 (D.C. Cir. 1989).
‘ The letter of request in this case shows_that the

Case 1:05-mc-00070-SLR Document 2 Filed 04/13/2005 Page 3 of 3 - ‘
information sought is for use in such.proceedings in Kazakhstan and l
§. hence the request comes well within those circumstances
- contemplated by Congress in expanding the Federal Courts' authority
Q ‘ to act in such matters. In Re Letter of Reggest from the Crown
_ Prosecution Service of the United Kingdom, 870 F.2d 686, 689-91
g · (D.C. Cir. 1989); In Re Letters Rogatory.from the Tokyo·District,
i Tokyo, Japan, 539 F.2d 1216, 1219 (9th Cir. 1976). Therefore, I
in ask this Court to honor the request for assistance.
‘ The reception of letters of request and the appointment of a -
i Commissioner to execute them are matters customarily handled ex
j _ parte, and persons with objections to the request raise_those
g objections by moving to quash any subpoenas issued by the
i Commissioner. Id.
. WHEREFORE, the United States requests that the Court issue an
Q -Order, in the form, appended hereto, appointing a Commissioner in
{ order to execute the request for assistance. .
E Respectfully submitted,
i I COLM F. CONNOLLY
; _ United States Attorney
Q BY: [
_ _ Richard G. Andrews .
§ Assistant .S. Attorney
i - Delaware Bar I.D. No.2l99 `
1007 N. Orange Street
_ 4 Wilmington, DE 19801
g - .c _ (302) 573—6277 ‘ _ l
1 ‘ Dated; . 1 ` e