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statement of the subject matter about which the witness is to be examined, or by identifying the documents or other objects to be produced); and
-is accompanied by a statement from the Embassy guaranteeing payment by the Embassy of costs incidental to execution of the request.
In criminal cases, in which the person to be examined is a defendant, suspect, or a potential defendant or suspect, the request should also set forth the testimonial privileges which may be available to such person under the law of the requesting state.
Conforming requests will be transmitted to the Department of Justice for execution in the judicial district in which the subject of the request is located. A representative of the Department of Justice will communicate with the person or entity from whom the evidence is sought ("the witness”), and will request that the evidence be supplied voluntarily. If the witness accedes, his statement will be taken under oath or affirmation (under penalty of perjury) before a notary public. The statement will be returned to the requesting authority, together with a copy of the request. If the evidence sought is a document or other thing, and is provided voluntarily by its custodian, it will be transmitted to the requesting authority in the same manner. (The custodian may require, as a condition of his cooperation, payment of costs by the Embassy, and assurance that the evidence will be returned.)
If the witness declines to produce the evidence voluntarily, a representative of the Department of Justice will petition the competent Federal district court to apply appropriate measures of compulsion requiring the witness to produce the evidence. If the petition is granted, the court will enter an order authorizing the issuance of appropriate subpoenas and appointing a "commissioner" to secure the evidence. (Under United States law a judge seldom, if ever, secures the evidence himself.) The "commissioner" may be a person designated by the requesting authority. If the witness fails to obey the court order he may be punished for contempt of court, unless the information sought is subject to a legally applicable privilege.
Requests for evidence transmitted through diplomatic channels need not be legalized or authenticated if the transmittal note confirms that the request emanates from a duly constituted tribunal or other judicial authority of the requesting country.
The Secretary of State wishes to note that there is no requirement that requests for judicial assistance be referred to the Department of State for execution; the Federal statute which authorizes Federal district courts to render assistance to foreign tribunals provides that such requests may be presented directly to the courts by "any interested person" (see enclosure 2). Direct presentation to a court of the United States does not, however, mean the mailing or transmitting of a request to a judge or to a clerk of the court; it means a formal presentation through counsel.
The Secretary of State also wishes to point out that the United States does not object to the informal taking of testimony by members of diplomatic or consular missions, or by private counsel, from witnesses in the United States, provided the witness agrees voluntarily to give testimony and no compulsion, threats or
intimidation is used. If foreign officials, other than members of diplomatic or consular missions, engage in the securing of testimony in the United States, the Department of State should receive advance notification of that fact.
The Secretary of State further wishes to direct the attention of the Chiefs of Mission to the existence of the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, adopted at the Eleventh Session of The Hague Conference on Private International Law on October 26, 1968, which is presently in force in the United States. The Convention facilitates the transmission and execution of evidence requests, accommodates the different methods which States use for this purpose, and permits the submission of requests in French or English. The Convention provides for accession by other states.
Other Requests The Department of State receives from time to time a variety of requests from foreign tribunals asking, for example, that their judgments be executed; that custody or alimony decrees be enforced; that property in the United States be sequestered; that witnesses in the United States be compelled to attend hearings in a foreign tribunal; or that an investigation of certain matters be conducted by a court of the United States. Such requests are beyond the scope of the authority granted to the courts by law (see enclosure 2); foreign judgments, decrees or orders cannot be enforced in the United States by means of a request for judicial assistance, and the Department of State will return such requests unexecuted. Return of a request under these circumstances does not imply that a judicial remedy is not available in the United States; it simply means that the remedy cannot be had through the medium of letters rogatory. Under the laws of the United States, an individual seeking to enforce a foreign judgment, decree or order in this country must file suit before a competent court. The court will determine whether to give effect to the foreign judgment. As with most legal proceedings, it is necessary to retain counsel to conduct the suit.
In all cases, the Department's primary consideration will be the furtherance of the administration of justice through effective cooperation with the judicial authorities of other States, subject to the condition of reciprocity and the limitations imposed by United States law.
Rules of Civil Procedures
Rule 4.- Process
(c) By Whom Served. Service of all process shall be made by a United States marshal, by his deputy, or by some person specially appointed by the court for that purpose, except that a subpoena may be served as provided in Rule 45. Special appointments to serve process shall be made freely when substantial savings in travel fees will result.
(d) Summons: Personal Service. The summons and complaint shall be served together. The plaintiff shall furnish the person making service with such copies as are necessary. Service shall be made as follows:
(1) Upon an individual other than an infant or an incompetent person, by delivering a copy of the summons and of the complaint to him personally or by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of
process. (2) Upon an infant or an incompetent person, by serving the summons and complaint in the manner prescribed by the law of the State in which the service is made for the service of summons or other like process upon any such defendant in an action brought in the courts of general jurisdiction of that State.
(3) Upon a domestic or foreign corporation or upon a partnership or other unincorporated association which is subject to suit under a common name, by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant.
(4) Upon the United States, by delivering a copy of the summons and of the complaint to the United States attorney for the district in which the action is brought or to an assistant United States attorney or clerical employee designated by the United States attorney in a writing filed with the clerk of the court and by sending a copy of the summons and of the complaint by registered or certified mail to the Attorney General of the United States at Washington, District of Columbia, and in any action attacking the validity of an order of an officer or agency of the United States not made a party, þy also sending a copy of the summons and of the complaint by registered or certified mail to such
officer or agency.
(7) Upon a defendant of any class referred to in paragraph (1) or (3) of this subdivision of this rule, it is also sufficient if the summons and complaint are served in the manner prescribed by any statute of the United States or in the manner prescribed by the law of the State in which the district court is held for the service of summons or other like process upon any such defendant in an action brought in the courts of general jurisdiction of that State. As amended Jan. 21, 1963, eff. July 1, 1963.
(g) Return. The person serving the process shall make proof of service thereof to the court promptly and in any event within the time during which the person served must respond to the process. If service is made by a person other than a United States marshal or his deputy, he shall make affidavit thereof. Failure to make proof of service does not affect the validity of the service.
TITLE 28, UNITED STATES CODE $ 1782. Assistance to foreign and international tribunals and to litigants before
such tribunals. (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 tribunal. 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.
(b) This chapter does not preclude a person within the United States from voluntarily giving his testimony or statement, or producing a document or other thing, for use in a proceeding in a foreign or international tribunal before any person
and in any manner acceptable to him. (June 25, 1948, ch. 646, 62 Stat 949; May 24, 1949, ch. 139, 8 93, 63 Stat. 103; Oct. 3, 1964, Pub. L. 88-619, § 9(a), 78 Stat. 997.) Dept. of State File No. P76 0014–1925.
Bilateral Agreements U.S.-Switzerland Treaty
On July 27, 1976, the United States and Switzerland exchanged instruments of ratification of the Treaty between the two countries on Mutual Assistance in Criminal Matters, signed on May 25, 1973 (TIAS 8302; 27 UST 2179). The treaty came into force 180 days later, namely on January 23, 1977. In transmitting the treaty to the Senate for advice and consent to ratification on February 18, 1976, President Ford described it as follows:
The treaty is the first major international agreement by the United States aimed at obtaining information and evidence needed for criminal investigations and prosecutions. Cooperation of this kind with Switzerland is uniquely important because of its position as an international financial center. Despite the general cooperation of Swiss authorities in criminal cases, the procedures for obtaining needed information have been generally ponderous and inadequate. Despite this cooperation, United States law enforcement and investigative agencies have frequently encountered severe difficulties in obtaining needed information from Swiss banks because of banking secrecy laws.
The new treaty, as implemented by Swiss legislation, should open up new avenues of cooperation in Switzerland and greatly facilitate the work of the United States law enforcement and prosecutive agencies, especially in dealing with cases involving organized crime. Assistance will extend to ascertaining the whereabouts of persons. taking testimony, producing and preserving judicial and other documents, records and evidence, and serving and authenticating judicial and administrative documents.
An accompanying report by the Department of State described the assistance to be provided under the treaty as including special assistance where organized crime is involved, as well as regular assistance in locating witnesses, obtaining statements and testimony of witnesses, production and authentication of business records, and service of judicial or administrative documents. It adds the following explanation:
Several provisions of the treaty deal with the Swiss concept of banking secrecy. The negotiators gave careful attention to how
Swiss bank information could be made available to, and used by, the United States in connection with serious crimes here. When the conditions of the treaty have been met, bank secrecy is no bar to assistance.
The treaty is limited to providing to each country additional evidence and information for its use in investigating or prosecuting crimes established by its domestic law. It establishes no new crimes. Its object is to assist in overcoming the problems presented in obtaining information or evidence concerning activities taking place outside of a country in furtherance of crimes committed in violation of the laws of that country. Requests for assistance would be made through the respective Departments of Justice and will require execution by appropriate authorities in the two countries.
The Swiss Federal Council has approved the treaty along with proposed Federal legislation to implement it and submitted both to the Parliament. On January 13, 1976, Parliamentary approval of this treaty was completed.
No implementing legislation by the United States appears to be necessary. The United States would normally utilize Federal courts and agencies to carry out the treaty's substantive obligations. In several respects, however, the treaty would create new substantive or procedural law for the United States. . .
The Department's report gives several examples of the types of new law that would be created. Included is an anticipated expansion of assistance in certain ancillary administrative proceedings affecting such procedures as disbarment of an attorney or revocation of a driver's license, both sanctions resulting from conduct constituting an offense within the purview of the treaty. An additional exception to the Freedom of Information Act, 5 U.S.C.552, is seen in the treaty provision concerning withholding from public disclosure of information provided by the Swiss Government which is subject to banking or business secrecy requirements in Switzerland. The report states: "The treaty creates a limitation by force of law subject only to constitutional requirements, specifically, our constitutional requirement that the public be permitted access in public trial.”
Another provision of the treaty creates a legal privilege against compulsion of testimony in United States courts if the person in question has a right to refuse to testify under Swiss law, or, under certain limited circumstances, if the information is protected by banking or business secrecy requirements in Switzerland.
The treaty states that its provisions shall take precedence over any inconsistent provisions of the municipal laws in either the United States or Switzerland, but other provisions specifically recognize the applicability of municipal law in certain limited situations.
For the President's message of transmittal of the U.S.-Switzerland treaty to the Senate, the Dept. of State report on the treaty, a technical analysis of the treaty provisions, as well as the text of the treaty and related exchanges of notes, see S. Ex. F, 94th Cong., 2d Sess.