7 FAM 960
CRIMINAL MATTERS, REQUESTS FROM FOREIGN TRIBUNALS, AND OTHER SPECIAL ISSUES
(Office of Origin: CA/OCS)
7 FAM 961 SPECIAL JUDICIAL ASSISTANCE ISSUES
This subchapter addresses special issues associated with judicial assistance questions to which the procedures outlined elsewhere in this chapter do not apply. This includes, but is not limited to, judicial assistance requests in criminal matters, requests from foreign courts and tribunals for judicial assistance from the United States, travel of foreign officials to the United States related to judicial assistance, and the enforcement of judgments issued by courts in one country in another country.
7 FAM 962 CRIMINAL MATTERS
7 FAM 962.1 Mutual Legal Assistance in Criminal Matters Treaties (MLATs)
a. The United States is a party to various bilateral treaties on Mutual Legal Assistance in Criminal Matters (MLAT). See the Bureau of Consular Affairs Internet feature on Mutual Legal Assistance Treaties and Other Agreements and Treaties in Force on the Department of State Internet page. Since the first U.S. bilateral Mutual Legal Assistance Treaty (MLAT) entered into force with Switzerland in 1977, our MLATs have become an increasingly important. They seek to improve the effectiveness of judicial assistance and to regularize and facilitate its procedures. Each country designates a central authority, generally the two Justice Departments, for direct communication. The treaties include the power to summon witnesses, to compel the production of documents and other real evidence, to issue search warrants, and to serve process. Consular officers may be called on to assist U.S. prosecutors in making arrangements for obtaining evidence under such agreements. This assistance usually takes the form of arranging appointments, providing office space, administering oaths, and so forth.
b. Defense Requests:
(1) Generally, the remedies offered by the MLAT treaties are only available to the prosecutors. (See 7 FAM 962.5). The defense must usually proceed with the methods of obtaining evidence in criminal matters under the laws of the host country, which usually involve letters rogatory. Defense requests in criminal matters should be directed to CA/OCS/ACS, which will consult with L/CA as appropriate.
(2) Federal Public Defenders: Federal Public Defenders are appointed to represent private defendants in criminal matters prosecuted by the Department of Justice. As employees of the judicial branch they are not subject to Chief of Mission authority or post country clearance procedures. (See 2 FAH-2 H-110.) The Department does encourage federal public defenders to notify L/CA of overseas travel so that overseas embassies may be alerted and advise The Department regarding any requirements the host country may have. Federal Public Defenders perform an essentially non-governmental, private function and owe paramount professional loyalty to their private clients. The Department does not monitor how federal public defenders execute their professional obligations toward their clients but rather is keenly interested in their welfare as U.S. citizens when traveling abroad and seeks to provide information and facilitate contacts with foreign governments so that professional activities may be undertaken in compliance with host country requirements. Questions involving federal public defenders should be directed to L/CA.
c. The U.S. Central Authority for MLAT treaties is the U.S. Department of Justice, Criminal Division, Office of International Affairs. The Department of State Office responsible for questions related to MLAT treaties is the Office of the Legal Adviser for Law Enforcement and Intelligence (L/LEI).
d. The United States now has the following bilateral MLATs in force, unless otherwise noted as being signed but not in force. This list is subject to change. For the most recent information, refer to Treaties in Force and Treaty Actions. The U.S. is also a party to the multilateral Inter American Convention on Mutual Assistance in Criminal Matters. The multilateral Agreement on Mutual Legal Assistance between European Union and United States of America is not yet in force.
7 FAM 962.2 Coordination with U.S. Law Enforcement at U.S. Embassies and Consulates
For countries where there is no MLAT treaty in force, U.S. federal, state and local prosecutors may require consular assistance in the taking of depositions of willing witnesses, transmittal of letters rogatory for compulsion of evidence, and preparation of special authentication certificates required for criminal matters. (See the Federal Rules of Evidence, Rule 902, Rule 1000-1008).
7 FAM 962.3 Grand Jury Secrecy
When the Department receives a request for judicial assistance related to a Grand Jury proceeding, instructions from CA/OCS will include specific guidance about grand jury secrecy, Rule 6(e) Federal Rules of Criminal Procedure. L/CA provides guidance to CA/OCS/ACS and posts abroad, coordinating closely with the Office of the Legal Adviser for Consular Affairs (L/CA and L/LEI) and the U.S. Department of Justice as appropriate in these cases. Access to this information is strictly on a need to know basis for fulfillment of the request. Information about Department of State and U.S. Embassy and Consulate officials with access to information about Grand Jury proceedings must be reported to L/CA to be shared with the Court.
7 FAM 962.4 Service Of Federal Criminal Subpoenas
7 FAM 950 provides information on “Service of Federal Criminal Subpoenas”.
7 FAM 962.5 Defense Requests In Criminal Matters
MLAT treaties are not generally available as a mechanism for obtaining judicial assistance on behalf of the defense in criminal cases. Defense counsel may consult the Bureau of Consular Affairs Internet page judicial assistance material for general and country specific guidance. Requests for taking depositions of willing witnesses abroad may be made directly to U.S. embassies and consulates abroad. Requests for compulsion of evidence pursuant to letters rogatory may be directed to CA/OCS/ACS. L/CA is available to assist in these cases.
7 FAM 962.6 Authentication of Documentary Evidence for Use in Criminal Matters
a. 7 FAM 875 provides general guidance about authentication of documents for use by Federal agencies.
b. The U.S. Department of Justice, Criminal Division, Office of International Affairs has advised the Department of State that it is not appropriate to authenticate documents emanating from countries party to the Hague Convention Abolishing the Requirement for Legalization of Foreign Public Documents with an apostille certificate issued by a foreign competent authority. (See 7 FAM 876.)
c. Documents originating in a foreign country which may be requested for use in the United States in criminal matters generally fall into the following categories:
(1) Authentication of Business Records;
(2) Authentication of Foreign Government Official Records;
(3) Certification by the Custodian of the Business or Foreign Government Official Records as to the Absence of Such Records; and
(4) Consular Authentication of the seal of the Custodian of the Business Records or the Foreign Government Official Records – Department of State Form DS-1982, General Authentication Certificate.
d. The Department of Justice has provided the Department of State with the following model certificates which are available at the Consular Affairs, Overseas Citizens Services Intranet page:
(1) Certificate of Authenticity of Business Records;
(2) Certificate Regarding Search for Business Records;
(3) Attestation of Authenticity of Official Records; and
(4) Certificate Regarding Search for Foreign Official Records.
e. Questions concerning the appropriate authentication certificate to be used in criminal matters should be addressed by the U.S. Government or state government agency, prosecutor or other person making the request. L/CA can assist posts in coordinating with the Office of the Legal Adviser for Law Enforcement and Intelligence (L/LEI) and the Department of Justice or other agency regarding such cases.
7 FAM 963 U.S. JUDICIAL ASSISTANCE TO FOREIGN TRIBUNALS
a. 28 U.S.C. 1781 provides the Department of State has power, directly, or through suitable channels to receive letters rogatory issued, or request made, by a foreign or international tribunal, to transmit it to the tribunal, officer, or agency in the United States to whom it is addressed, and to receive and return it after execution.
28 CFR 0.49 International judicial assistance.
“The Assistant Attorney General in charge of the Civil Division shall direct and supervise the following functions:
(a) The functions of the ``Central Authority'' under the Convention between the United States and other Governments on the Taking of Evidence Abroad in Civil and Commercial Matters (Hague Evidence Convention), TIAS 7444, which entered into force on October 7, 1972.
b. When a post receives such a request, it should consult with CA/OCS and L/CA on how to proceed. These requests are generally sent to L/CA/POG/GC's judicial assistance officer and reviewed to determine the next steps.
7 fam 965 ASSISTANCE TO U.S., STATE AND LOCAL GOVERNMENT AGENCIES
Consular officers should provide assistance to U.S., State, and local government agencies in judicial assistance matters, bearing in mind the need to observe host country legal procedures and sensitivities, as well as any limitations prescribed by U.S. law or policy. If the consular officer has doubts about a request for legal assistance, refer the matter to the Department (L/CA).
7 fam 966 enforcement of judgments
a. There is no treaty in force between the United States and any country regarding enforcement of judgments. You may direct inquirers to the Department of State, Bureau of Consular Affairs Internet page enforcement of judgments feature.
b. The United States is a party to the Hague Child Support Convention and has federal bilateral reciprocal administrative agreements on child support enforcement. For questions about international child support enforcement, see 7 FAM 1750 and the Internet features:
Bureau of Consular Affairs
Child Support Enforcement feature
Department of Health and Human Services, Administration for Children and Families, Office of Child Support Enforcement (HHS/ACF/OCSE)
Foreign Reciprocating Countries
7 fam 967 through 969 UNASSIGNED