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105th Congress                                               Exec. Rpt.
                                 SENATE

 2nd Session                                                     105-22
_______________________________________________________________________


 
  MUTUAL LEGAL ASSISTANCE TREATIES WITH AUSTRALIA, BARBADOS, BRAZIL, 
    CZECH REPUBLIC, ESTONIA, HONG KONG, ISRAEL, LATVIA, LITHUANIA, 
 LUXEMBOURG, POLAND, TRINIDAD & TOBAGO, VENEZUELA, ANTIGUA & BARBUDA, 
DOMINICA, GRENADA, ST. KITTS & NEVIS, ST. LUCIA, AND ST. VINCENT & THE 
                               GRENADINES

                                _______
                                

 October 14 (legislative day,  October 2), 1998.--Ordered to be printed

_______________________________________________________________________


   Mr. Helms, from the Committee on Foreign Relations, submitted the 
                               following

                              R E P O R T

 [To accompany Treaty Docs. 105-6; 105-11; 105-12; 105-22; 105-23; 105-
  24; 105-27; 105-34; 105-37; 105-38; 105-40; 105-41; 105-42; 105-44; 
                          105-47; and 105-52.]

    The Committee on Foreign Relations, to which was referred 
the Agreement between the Government of the United States of 
America and the Government of Hong Kong on Mutual Legal 
Assistance in Criminal Matters, with Annex, signed in Hong Kong 
on April 15, 1997 (Treaty Doc. 105-6); the Treaty Between the 
Government of the United States of America and the Government 
of the Grand Duchy of Luxembourg on Mutual Legal Assistance in 
Criminal Matters, and related exchange of notes, signed at 
Washington on March 13, 1997 (Treaty Doc. 105-11); the Treaty 
Between the United States of America and the Government of the 
Republic of Poland on Mutual Legal Assistance in Criminal 
Matters, and related exchange of notes, signed at Washington on 
July 10, 1996 (Treaty Doc. 105-12); the Treaty Between the 
Government of the United States of America and the Government 
of Trinidad and Tobago on Mutual Legal Assistance in Criminal 
Matters, signed at Port of Spain on March 4, 1996 (Treaty Doc. 
105-22); the Treaty Between the Government of the United States 
of America and the Government of Barbados on Mutual Legal 
Assistance in Criminal Matters, signed at Bridgetown on 
February 28, 1996 (Treaty Doc. 105-23); the Treaties Between 
the Government of the United States of America and the 
Governments of Four Countries Comprising the Organization of 
Eastern Caribbean States: Antigua and Barbuda, signed at St. 
John's on October 31, 1996; Dominica, signed at Roseau on 
October 10, 1996; Grenada, signed at St. George's on May 30, 
1996; St. Lucia, signed at Castries on April 18, 1996 (Treaty 
Doc. 105-24); the Treaty Between the Government of the United 
States of America and the Government of Australia on Mutual 
Assistance in Criminal Matters, and related exchange of notes, 
signed at Washington on April 30, 1997 (Treaty Doc. 105-27); 
the Treaty Between the United States of America and the 
Republic of Latvia on Mutual Legal Assistance in Criminal 
Matters, signed at Washington on June 13, 1997, and an exchange 
of notes signed the same date (Treaty Doc. 105-34); the Treaty 
Between the Government of the United States of America and the 
Government of St. Kitts and Nevis on Mutual Legal Assistance in 
Criminal Matters, signed at Basseterre on September 18, 1997, 
and a related exchange of notes signed at Bridgetown on October 
29, 1997, and February 4, 1998 (Treaty Doc. 105-37); the Treaty 
Between the Government of the United States of America and the 
Government of the Republic of Venezuela on Mutual Legal 
Assistance in Criminal Matters, signed at Caracas on October 
12, 1997 (Treaty Doc. 105-38); the Treaty Between the 
Government of the United States of America and the Government 
of the State of Israel on Mutual Legal Assistance in Criminal 
Matters, signed at Tel Aviv on January 26, 1998, and a related 
exchange of notes signed the same date (Treaty Doc. 105-40); 
the Treaty Between the Government of the United States of 
America and the Government of the Republic of Lithuania on 
Mutual Legal Assistance in Criminal Matters, signed at 
Washington on January 16, 1998 (Treaty Doc. 105-41); the Treaty 
Between the Government of the United States of America and the 
Government of the Federative Republic of Brazil on Mutual Legal 
Assistance in Criminal Matters, signed at Brasilia on October 
14, 1997 (Treaty Doc. 105-42); the Treaty Between the 
Government of the United States of America and the Government 
of Saint Vincent and the Grenadines on Mutual Legal Assistance 
in Criminal Matters, and a Related Protocol, signed at 
Kingstown on January 8, 1998 (Treaty Doc. 105-44); the Treaty 
Between the United States of America and the Czech Republic on 
Mutual Legal Assistance in Criminal Matters, signed at 
Washington on February 4, 1998 (Treaty Doc. 105-47); the Treaty 
Between the Government of the United States of America and the 
Government of the Republic of Estonia on Mutual Legal 
Assistance in Criminal Matters, signed at Washington on April 
2, 1998, and an exchange of notes dated September 16 and 17, 
1998 (Treaty Doc. 105-52), having considered the same, reports 
favorably thereon, each with one understanding, one declaration 
and two provisos, and recommends that the Senate give its 
advice and consent to the ratification thereof as set forth in 
this report and the accompanying resolutions of ratification.

                                CONTENTS

                                                                   Page

  I. Purpose..........................................................3
 II. Background.......................................................3
III. Summary..........................................................3
 IV. Entry Into Force and Termination................................10
  V. Committee Action................................................10
 VI. Committee Comments..............................................10
VII. Explanations of Proposed Treaties...............................12
VIII.Resolutions of Ratification....................................367


                               I. Purpose

    Bilateral mutual legal assistance treaties are intended to 
establish a formal basis for cooperative law enforcement 
efforts.

                             II. Background

    Nineteen mutual legal assistance treaties (MLATs) were 
submitted to the Senate during the 105th Congress. They include 
agreements with Hong Kong; Luxembourg; Australia; Venezuela; 
Israel; Brazil; several of the island nations of the Caribbean 
(Trinidad and Tobago, Barbados, Antigua and Barbuda, Dominica, 
Grenada, St. Lucia, St. Kitts and Nevis, and St. Vincent and 
the Grenadines); as well as several countries in Eastern Europe 
(Poland, Estonia, Latvia, Lithuania, and the Czech Republic).
    The United States already has twenty MLATs in force. 
Although each of the treaties currently before the Senate has 
its own distinctive features, the treaties follow a common 
format and as a group exhibit more similarities than 
differences.

                              III. Summary

                               a. General

    The treaties generally are arranged in twenty articles. 
Some have a few more; some a few less. They cover essentially 
the same matters in essentially the same order, frequently 
using virtually the same terminology. They are typically 
aligned as follows with articles on:

   the scope of assistance of the Treaty, in the form a 
        general statement of purpose and a general inventory of 
        the kinds of assistance available;
   identification of the Central Authorities 
        responsible for administration of the Treaty;
   the limitations on assistance available at the 
        discretion of the Central Authority in particular types 
        of cases;
   the form and contents required of any request for 
        assistance under the Treaty;
   the general responsibilities and prerogatives of 
        those called upon to execute requests under the Treaty;
   how the costs associated with a particular request 
        are to be allocated;
   the limitations of use or disclosure of any evidence 
        or information secured pursuant a Treaty request;
   the procedure for hearings conducted at the behest 
        of a foreign country to take testimony or evidence in 
        the Requested State;
   the circumstances under which the Parties are to 
        have access to information found in the records of 
        government agencies of other countries;
   the procedure for inviting witnesses to travel 
        abroad and give testimony in the Requesting State;
   the provisions for the transfer of persons in 
        custody (prisoners) from one country to the other to 
        permit them to participate in foreign proceedings;
   the pledge of each Party to devote their best 
        efforts in response to a request for the location or 
        identification of a particular person or item;
   the commitment of each Party for the service of 
        documents related to a Treaty request;
   the agreement to execute a search and seizure upon 
        request of a Treaty partner;
   provisions for the return of property transferred to 
        another country pursuant to a Treaty request;
   bilateral assistance in forfeiture proceedings and 
        in proceedings concerning restitution and criminal 
        fines;
   compatibility with other arrangements, that is, the 
        fact that the Treaty is not intended to preempt other 
        legal grounds for cooperative law enforcement efforts;
   consultation among the agencies responsible for 
        implementation of the Treaty; and
   the particulars of ratification, termination and 
        effective dates.

                           b. Key Provisions

1. Scope of Assistance

    The first article in each of the Treaties before the Senate 
address the scope of the assistance available under the Treaty. 
The article usually consists of four components: a statement of 
purpose, an inventory of some of types of assistance available 
under the agreement, a statement on dual criminality, and 
disclaimer of any intent to give the defendant additional 
rights.

2. Central Authorities

    Article 2 of the Treaties vests the principal prosecutorial 
authorities, frequently the Attorneys General, with the 
responsibility for Treaty administration. In the United States, 
the Attorney General has designated the Assistant Attorney 
General for the Criminal Division to act as the Central 
Authority for all MLATs. That official has in turn authorized 
any of the Deputy Assistant Attorneys General, the Director of 
the Division's Office of International Affairs, or any of the 
Office's Deputy Directors to exercise the prerogatives of the 
Central Authority for the United States. Most countries follow 
a similar delegation pattern.
    Other articles of the Treaties give the Central Authorities 
and their subordinates considerable discretion over Treaty 
administration, but Article 2 offers one valuable tool--it 
allows them to deal directly with one another. This makes it 
possible to respond to requests quickly and to make adjustments 
cognizant of prosecutorial and other law enforcement needs. A 
number of countries see both the Treaty and this law 
enforcement-to-law enforcement feature as a welcome alternative 
to some of the diplomatic irritants that may accompany self-
help or informal requests for assistance. A possible 
disadvantage of this approach may be an occasional loss of 
overall coordination of a country's overseas endeavors.

3. Limitation on Assistance

    Article 3 of the Treaties, in most instances, bestows two 
general powers upon the Central Authorities. It permits them to 
approve or disapprove certain types of requests and it allows 
them to reshape requests that they have been empowered to deny.
    With an occasional exception, the Treaties allow the 
Central Authorities to accept or refuse a request related to a 
political offense or to purely military offense (misconduct 
that does not amount to a civilian crime, such as desertion) or 
a request that fails to meet the specifications for petitions 
under the Treaties.
    Each of the Treaties also has an ``essential interests'' 
clause that affords Central Authorities considerable leeway. 
Their exact wording varies from authority to deny a request 
whose execution ``would prejudice the sovereignty, security, 
ordre public, or similar essential interests of the Requested 
State'' to the power to deny a request whose execution ``would 
prejudice the security or similar essential interests of the 
Requested State.''
    The words ``sovereignty,'' ``security'', ``public order,'' 
and ``essential interests'' in other contexts may each call to 
mind some distinct collection of interests. Circumstances that 
have once been recognized as within the scope of one essential 
interests clause are likely to be subsequently claimed under 
others. In the past ``essential interest'' clauses have been 
understood to permit a country that had abolished capital 
punishment as a sentencing alternative to deny assistance in a 
capital case. Other abolitionist countries may well claim the 
clause to deny Treaty assistance in a capital case unless the 
United States agrees that the death penalty will not be used in 
the particular case. A comparable fate may await an American 
request related to criminal conduct occurring within the 
territory of the Requested State and under circumstances where 
it would consider our exercise of jurisdiction 
``extraterritorial and objectionable.''
    On the other hand, the United States may claim the 
discretion of the essential interest clause should it be asked 
to assist in a foreign investigation or prosecution of conduct 
that in the United States would be constitutionally protected.

4. Form and Content of Requests

    Treaty requests must be in writing, although in emergency 
situations they may be presented orally and confirmed in 
writing within 10 days or whatever time period the Central 
Authorities agree upon. In the Treaties with countries where 
English is not the principal language, requests must be 
submitted in the language of the Requested State unless 
otherwise agreed.
    The requests must indicate (a) what assistance is being 
sought, (b) the purposes for which it is being sought, (c) the 
name of the authority conducting the investigation, prosecution 
or proceeding to which the request relates, and (d) background 
information, ordinarily including an identification and perhaps 
a copy of the substantive criminal laws to which the request is 
related. The description of the first three of these demands is 
virtually identical in all of the Treaties. The specifications 
for the background information that must accompany any Treaty 
request is most commonly phrased as ``a description of the 
subject matter and nature of the investigation, prosecution, or 
proceeding, including the specific criminal offenses that 
relate to the matter.'' Others are not dramatically different, 
but frequently call for a bit more information, probably to 
ensure compliance with restrictions elsewhere in their 
Treaties.
    The final component of the article dealing with form and 
content outlines the informational requirements for specific 
types of requests, the whereabouts of individuals or items 
whose identification has been requested and the like, which 
will described below in the context of the particular types of 
requests.

5. Execution of Requests

    The fifth Article of each of the Treaties deals with seven 
issues related to the performance of Treaty requests, usually 
employing boilerplate language:

   general obligations of the Central Authorities;
   representation of the foreign country placing the 
        request;
   the law governing the manner in which requests will 
        be answered;
   the obligation when a request relates to a matter 
        pending in both countries;
   confidentiality requirements;
   the rights of the Requesting State to be informed of 
        the status of performance on their requests; and
   the rights of the Requesting State to be informed of 
        the outcome of the execution of their requests.

6. Cost

    The Treaties handle associated costs primarily as 
incidental to domestic law enforcement responsibilities. The 
country providing assistance is expected to bear the expense. 
Requesting countries are responsible for the costs of 
translations, transcriptions, expert witness fees, and the 
expenses associated with the foreign travel of witnesses. This 
approach prevents countries from claiming reimbursement for 
excessive costs to discourage requests or to mask a refusal to 
provide assistance. In exceptional cases, however, the Parties 
may agree to share costs and to modify the assistance provided 
for fiscal reasons.

7. Limitations on Use

    Article 7 of the treaties contains the second 
confidentiality element--the use and disclosure of evidence and 
information produced under the Treaties. Most of the Treaties 
allow the Central Authorities of the country providing evidence 
or information under the Treaty to prohibit its use in other 
investigations, prosecutions, or proceedings without their 
consent or until after it has been publicly disclosed as a 
consequence of the use for which it was intended. The Israeli 
Treaty and several of those with Caribbean nations feature the 
same confidentiality requirements, but impose them without 
regard to whether or not they are requested. The U.S. Treaty 
with Luxembourg stipulates that even if publicly disclosed in 
the course of the proceedings for which it was provided and 
even if confidentiality has not previously been requested, 
information or evidence secured under the Treaty may not be 
used in a case involving a purely military offense, a political 
offense, a capital offense, or a tax offense without the 
consent of the country that provided the information or 
evidence.
    All the Treaties permit the country that provides evidence 
or information under their provisions to impose conditions 
preserving its confidentiality and restricting its use and 
disclosure.

8. Testimony and Evidence in the Requested State

    The Treaties provide that, ``a person [found] in the 
Requested State from whom testimony or evidence is requested . 
. . shall be compelled, if necessary, to appear and testify or 
produce items, including documents and records.'' The country 
requesting the testimony or evidence may ask for, and is 
entitled to receive, advanced notice of the time and place of 
execution of its request. Individuals specified in the request 
are entitled to attend and either to question the witness or to 
submit questions to be asked.
    Foreign witnesses called to testify or produce evidence 
abroad under the Treaties are entitled to claim the benefits of 
any privileges, immunities and incapacities recognized by our 
law. The most obvious of these--beyond the evidentiary 
privileges recognized by the federal courts, and probably by 
the state courts in the case of any request initiated at the 
behest of one of the several States of the United States--are 
those guaranteed by the Constitution, most notably the Fourth 
and Fifth Amendments. Although under a few Treaties the law of 
the forum State applies as well, witness claims of immunity, 
privilege or incapacity are governed by the law of the nation 
that seeks the witness's testimony. In the case of claims under 
the laws of the Requesting State, the evidence is taken and 
matter referred for resolution in the Requesting State. A claim 
of privilege or immunity cannot be vindicated in an overseas 
proceeding conducted under the Treaties, because they call for 
the evidence to be taken nonetheless and for the claims to be 
resolved after the fact in the United States. The available 
remedies may be limited to post facto suppression of any 
tainted evidence or a protective order issued by an American 
court and directed against the federal or state government 
prior to the foreign proceeding.
    The Treaties call for authentication of evidence taken 
overseas, typically by use of appended forms, and declare 
evidence authenticated under the Treaties for admissibility 
purposes in the courts of the Treaty States.

9. Government Records

    The Treaties divide governmental information available 
under their provisions into two categories, publicly available 
information (which must be provided upon request) and 
information available to judicial and law enforcement personnel 
but not to the general public (which may be provided upon 
request).
    The Technical Analyses accompanying these treaties have 
noted that the provision permits access by the law enforcement 
and tax enforcement authorities of our MLAT Treaty partners to 
tax information held by the Internal Revenue Service (IRS) just 
as access is available to federal law enforcement officials. 
The general rule is subject to individual limitations found in 
Treaties, like those with Israel and Luxembourg, that have 
special tax investigation requirements and restrictions.

10. Appearance Outside the Requested State

    Foreign witnesses cannot be compelled to travel to the 
United States to testify, and vice versa, but as the Treaties 
observe they may be invited to do so. The invitations are 
extended by the nation in which the witness is found. The 
country seeking assistance must indicate the extent to which 
the witnesses' expenses will be paid. These elements are common 
to all of the Treaties. There is greater diversity over the 
extent of safe conduct offered and over the permissible range 
of assistance. The majority allow invitations for invitees ``to 
appear before the appropriate authority of the Requested 
State,'' a sufficiently imprecise phrase to accommodate both 
narrow or sweeping interpretation. It could be construed to 
mean no more than testimony in judicial proceedings. It could 
be alternatively interpreted to include testimony before any 
tribunal, judicial or administrative, and/or any form of 
assistance including but not limited to testimony.

11. Transfer of Persons in Custody

    The Treaties anticipate situations where prisoners are 
sought as participants in proceedings in another country either 
by the country in which they are imprisoned or by the country 
in which the proceedings are to be held. The Treaties overcome 
the dual problem that the country where the proceedings are to 
be conducted will frequently be unwilling to allow foreign 
officials to maintain custody of a prisoner within its 
territory but will lack the authority under their laws to 
accept custody on their own.
    With the consent of the prisoner and each of the States, 
the Treaties allow a transfer of custody to provide law 
enforcement assistance. The Treaties uniformly authorize the 
receiving State to accept custody, instruct the receiving State 
to return the prisoner without the necessity of extradition, 
and credit the prisoner with time spent in the receiving State. 
The Czech, Lithuanian, Latvian and Luxembourg Treaties also 
authorize transfers to the third countries. Most of the 
Treaties do not mention safe conduct guarantees for transferred 
prisoners; the Treaties with Hong Kong, Israel, Lithuania, 
Australia and the Czech Republic do.

12. Location or Identification of Persons or Items

    The Parties pledge their best efforts to ascertain the 
location or identity of persons or items upon request. 
Effective use of a MLAT or an extradition treaty often begins 
by finding an overseas fugitive or locating and identifying a 
witness or a custodian of bank records or other physical 
evidence resident in another country. The form and content 
articles of the Treaties instruct requesting States to provide 
such information as to the location and identification of the 
persons or items as they can.

13. Service of Documents

    The MLAT procedure can be used to serve subpoenas issued 
under section 1783 of Title 28 of the U.S. Code on Americans in 
other countries, unless foreign law expressly prohibits 
service. Except for the Treaties with Australia, Hong Kong, and 
Israel, however, the service-of-document articles are 
subservient to the other Treaty provisions for they may be 
employed only ``to effect service of any document related in 
whole or in part to any request for assistance made by the 
Requesting State under the provisions of'' the Treaties.
    Beyond a pledge of best efforts, the Treaties commit the 
Parties to provide advance notice in connection with any 
documents calling for an appearance abroad. They also demand 
that the country serving the documents provide evidence of 
service in the manner requested.

14. Search and Seizure

    The search and seizure articles in the Treaties are 
similarly uniform. They require execution of any request 
accompanied by information sufficient to satisfy the legal 
requirements of the country in which execution is to occur. 
They generally feature an authentication procedure designed to 
satisfy American legal requirements for admissibility of 
evidence. Finally, each of the Treaties has a provision 
authorizing conditions for the protection of third party 
interests in the property. The search and seizure article is 
followed in each of the Treaties by an article empowering the 
country executing the search and seizure to call for the return 
of the ultimate transferred property.
    Broadly cast as ``search and seizure'' provisions, the 
Treaty articles are rather clearly limited to searches and 
seizures of property; they neither authorize nor anticipate the 
search for nor the seizure of individuals.

15. Forfeiture Assistance

    Forfeiture varies from one jurisdiction to another and as a 
consequence MLAT forfeiture provisions vary a great deal from 
one Treaty to the next. The laws of some countries demand 
conviction as a condition of forfeiture. Others permit 
confiscation only after a criminal charge has been filed 
against the property owner. Many nations define the range of 
crimes upon which a forfeiture may be based more narrowly than 
we do. Some consider direct proceeds forfeitable, but not 
property purchased with direct proceeds. Still others allow 
confiscation only as a consequence of crimes committed within 
their jurisdiction and do not permit confiscation based solely 
on the presence of crime-tainted property within their 
jurisdiction. Any of these differences may complicate a foreign 
response to an American request for the forfeiture assistance.
    The Treaties' forfeiture assistance articles are similar. 
In agreements characterized most by their generalities, the 
forfeiture articles are perhaps the least revealing and perhaps 
the most likely rendered diverse by the particulars of the 
domestic laws that induce the frequent references to ``to 
extent permitted by its laws.''

16. Fine Collection and Restitution

    The Treaties in most instances include only passing 
references to fine collection and restitution: ``The 
Contracting Parties shall assist each other to the extent 
permitted by their respective laws in proceedings relating to 
the forfeiture of the proceeds and instrumentalities of 
offenses, restitution to the victims of crime, and the 
collection of fines imposed as sentences in criminal 
prosecutions.'' The Israeli and Czech Treaties have more 
extensive if only slight less cryptic citations to restitution 
and fine collection. Their reluctance to enforce foreign 
restitution and fine orders probably reflects the limitations 
of their domestic laws, which may be representative of the 
domestic laws of the other nations as well.

                  IV. Entry Into Force and Termination

                          a. entry into force

    The Treaties generally provide for the entry into force of 
the treaty either on the date of, or shortly after, the 
exchange of instruments of ratification.

                             b. termination

    The Treaties generally provide for the Parties to withdraw 
from the Treaty by means of written notice to the other Party. 
Termination would take place six months after the date of 
notification. Some of the treaties make clear that requests for 
assistance prior to notification of termination shall be 
honored.

                          V. Committee Action

    The Committee on Foreign Relations held a public hearing on 
the proposed Treaties on September 15, 1998. The Committee 
considered the proposed Treaties on October 14, 1998 and 
ordered the proposed Treaties favorably reported with the 
recommendation that the Senate give its advice and consent to 
the ratification of each of the proposed Treaties subject to 
one understanding, one declaration, and two provisos.

                         VI. Committee Comments

    The Committee on Foreign Relations recommends favorably the 
proposed Treaties. On balance, the Committee believes that the 
proposed Treaties are in the interest of the United States and 
urges the Senate to act promptly to give its advice and consent 
to ratification. Several issues did arise in the course of the 
Committee's consideration of the Treaties, and the Committee 
believes that the following comments may be useful to the 
Senate in its consideration of the proposed Treaties and to the 
State Department.

A. Restriction on Use of Assistance to Aid International Criminal Court

    On July 17, 1998 a majority of nations at the U.N. 
Diplomatic Conference in Rome, Italy, on the Establishment of 
an International Criminal Court voted 120-7, with 21 
abstentions, in favor of a treaty that would establish an 
international criminal court. The court is empowered to 
investigate and prosecute war crimes, crimes against humanity, 
genocide and aggression. The United States voted against the 
treaty.
    Each of the Resolutions of Ratification accompanying the 
Mutual Legal Assistance Treaties prohibits any assistance 
provided to any of the Treaty partners from being transferred 
to or otherwise used to assist the International Criminal Court 
agreed to in Rome, Italy. This restriction would be vitiated in 
the event that the United States ratifies the treaty, pursuant 
to the Constitutional procedures as contained in Article II, 
section 2 of the United States Constitution.
    This understanding makes clear that both Parties understand 
that information shared with a Party by the United States 
pursuant to the MLAT will not to be forwarded to the 
international court. The Committee understands that the terms 
of the Treaties will not give the United States, as Requested 
State, total control over the Requesting State's use of 
assistance provided under the Treaty. For instance, under the 
article on use limitations, information provided under the 
Treaty that has become public in the Requesting State may be 
used for any purpose. The Committee does expect and intend, 
however, that the United States will exercise its rights under 
the Treaty to prevent any assistance or information that we 
have provided to be transferred to the International Criminal 
Court.
    Members of the Committee are concerned that the Treaties 
could become conduits for assisting the International Criminal 
Court, even if the United States is not a party to the court. 
This provision would ensure that this does not happen so long 
as the treaty creating the criminal court has not entered into 
force for the United States.

   B. Use of treaties to aggressively pursue international parental 
                               kidnaping

    On October 1, 1998, the Committee on Foreign Relations 
convened a hearing to consider U.S. Responses to International 
Parental Kidnaping. The Attorney General, Janet Reno, testified 
before the Committee, as did four parents whose children were 
abducted or wrongfully retained in international jurisdictions. 
The parents recounted their frustration with the current level 
of U.S. Government assistance in seeking the return of their 
children.
    Although the Attorney General pointed to limitations in the 
ability of the U.S. Government to resolve many cases of 
international parental abduction, she also recognized that the 
United States could do better in assisting in the return of 
abducted children and pledged to take steps to improve 
coordination between the Departments of State and Justice. She 
also indicated that an interagency working group, which has 
been studying this issue during the past year, will produce a 
report in January with recommendations for improvements in U.S. 
policy regarding international parental kidnaping.
    As this working group completes its work, the Committee 
expects that one area related to these treaties that the 
working group should comment upon is the current practice of 
the exchange of information under MLATs and other means related 
to the crime of international parental kidnaping. Under current 
practice these treaties provide for cooperation between law 
enforcement officials. The Committee believes that care should 
be given to ensure that these treaties be useful tools for 
attaining information and other cooperation that will assist in 
the return of abducted or wrongfully retained children. The 
Committee anticipates that the Justice Department will consider 
renouncing treaties in the event that the Central Authority of 
a Party consistently fails to adequately provide assistance 
under the Treaty. The Committee is especially concerned that 
the proposed Treaty with Austria be monitored to ensure 
cooperation in the exchange of information related to 
international parental kidnaping.
    The State and Justice Departments have testified that these 
treaties are essential in order to ensure that criminals do not 
evade prosecution. This same principle should be true for the 
crime of parental kidnaping in violation of the 1993 
International Parental Kidnaping Act. The Committee expects, 
therefore, that State and Justice Department officials will 
seek cooperation in all cases unless it will hinder U.S. law 
enforcement efforts. The Committee also expects that State and 
Justice Department officials will raise this issue in the 
course of negotiation of all bilateral law enforcement treaties 
and in other bilateral diplomatic exchanges.

                 VII. Explanations of Proposed Treaties

    The following are the article-by-article technical analysis 
provided by the Departments of State and Justice regarding the 
mutual legal assistance treaties.

 Technical Analysis of the Treaty Between the United States of America 
 and Antigua and Barbuda on Mutual Legal Assistance in Criminal Matters

    On October 31, 1996, the United States signed a treaty with 
Antigua and Barbuda on Mutual Legal Assistance in Criminal 
Matters (``the Treaty''). In recent years, the United States 
has signed similar treaties with a number of countries as part 
of a highly successful effort to modernize the legal tools 
available to law enforcement authorities in need of foreign 
evidence for use in criminal cases.
    The Treaty is expected to be a valuable weapon for the 
United States in its efforts to combat organized crime, 
transnational terrorism, and international drug trafficking in 
the eastern Caribbean, where Antigua and Barbuda is a regional 
leader.
    It is anticipated that the Treaty will be implemented in 
the United States pursuant to the procedural framework provided 
by Title 28, United States Code, Section 1782. Antigua and 
Barbuda has its own mutual legal assistance laws in place for 
implementing the Treaty, and does not anticipate enacting new 
legislation. \1\
---------------------------------------------------------------------------
    \1\ ``An Act to make provision with respect to the scheme relating 
to Mutual Assistance in Criminal Matters within the Commonwealth and to 
facilitate its operation in Antigua and Barbuda and to make provision 
concerning mutual assistance in Criminal Matters between Antigua and 
Barbuda and countries other than Commonwealth countries'' (18 February 
1993), hereinafter ``Antigua Mutual Assistance Act, 1993.'' Since there 
are some differences between the Treaty and Antiguan law, it is 
anticipated that Antigua will issue regulations under Section 30, which 
will ``direct that [the] Act shall apply in relation to [the United 
States] as if it were a Commonwealth country, subject to such 
limitations, conditions, exceptions or qualifications (if any) as may 
be prescribed . . .'' in order for the terms of the Treaty to prevail.
---------------------------------------------------------------------------
    The following technical analysis of the Treaty was prepared 
by the Office of International Affairs, United States 
Department of Justice, and the Office of the Legal Adviser, 
United States Department of State, based upon the negotiating 
notes. The technical analysis includes a discussion of U.S. law 
and relevant practice as of the date of its preparation, which 
are, of course, subject to change. Foreign law discussions 
reflect the current state of that law, to the best of the 
drafters' knowledge.

                     Article 1--Scope of Assistance

    Paragraph 1 requires the Parties to provide mutual 
assistance in connection with the investigation, prosecution, 
and prevention of criminal offenses, and in proceedings 
relating to criminal matters.
    The negotiators specifically agreed that the term 
``investigations'' includes grand jury proceedings in the 
United States and similar pre-charge proceedings in Antigua and 
Barbuda, and other legal measures taken prior to the filing of 
formal charges in either State. \2\ The term ``proceedings'' 
was intended to cover the full range of proceedings in a 
criminal case, including such matters as bail and sentencing 
hearings. \3\ It was also agreed that since the phrase 
``proceedings related to criminal matters'' is broader than the 
investigation, prosecution or sentencing process itself, 
proceedings covered by the Treaty need not be strictly criminal 
in nature. For example, proceedings to forfeit to the 
Government the proceeds of illegal drug trafficking may be 
civil in nature; \4\ such proceedings are covered by the 
Treaty.
---------------------------------------------------------------------------
    \2\ The requirement that assistance be provided under the Treaty at 
the pre-indictment stage is critical to the U.S., as our investigators 
and prosecutors often need to obtain evidence from foreign countries in 
order to determine whether or not to file criminal charges. This 
obligation is a reciprocal one; the U.S. must assist Antigua and 
Barbuda under the Treaty in connection with investigations prior to 
charges being filed in Antigua and Barbuda. Prior to the 1996 
amendments to Title 28, United States Code, Section 1782, some U.S. 
courts had that provision to require that assistance be provided in 
criminal matters only if formal charges have already been filed abroad, 
or are ``imminent,'' or ``very likely.'' McCarthy, ``A Proposed Uniform 
Standard for U.S. Courts in Granting Requests for International 
Judicial Assistance,'' 15 Fordham Int'l Law J. 772 (1992). The 1996 
amendment eliminates this problem, however, by amending subsec. (a) to 
state ``including criminal investigation conducted before formal 
accusation.'' In any event, this Treaty was intentionally written to 
cover criminal investigations that have just begun as well as those 
that are nearly completed, and it draws no distinction between cases in 
which charges are already pending, are ``imminent,'' ``very likely,'' 
or ``very likely very soon.'' Thus, U.S. courts should execute requests 
under the Treaty without examining such factors.
    \3\ One United States court has interpreted Title 28, United States 
Code, Section 1782, as permitting the execution of a request for 
assistance from a foreign country only if the evidence sought is for 
use in proceedings before an adjudicatory ``tribunal'' in the foreign 
country. In Re Letters Rogatory Issued by the Director of Inspection of 
the Government of India, 385 F.2d 1017 (2d Cir. 1967); Fonseca v. 
Blumenthal, 620 F.2d 322 (2d Cir. 1980). This rule poses an unnecessary 
obstacle to the execution of requests concerning matters which are at 
the investigatory stage, or which are customarily handled by 
administrative officials in the Requesting State. Since this paragraph 
of the Treaty specifically permits requests to be made in connection 
with matters not within the jurisdiction of an adjudicatory 
``tribunal'' in the Requesting State, this paragraph accords the courts 
broader authority to execute requests than does Title 28, United States 
Code, Section 1782, as interpreted in the India and Fonseca cases.
    \4\ Title 21, United States Code, Section 881; Title 18, United 
States Code, Section 1964.
---------------------------------------------------------------------------
    Paragraph 2 lists the major types of assistance 
specifically considered by the Treaty negotiators. Most of the 
items listed in the paragraph are described in detail in 
subsequent articles. The second paragraph's list of kinds of 
assistance is not intended to be exhaustive, a fact which is 
signaled by the word ``include'' in the opening clause of the 
paragraph and reinforced by the final subparagraph.
    Many law enforcement treaties, especially in the area of 
extradition, condition cooperation upon a showing of ``dual 
criminality'', i.e., proof that the facts underlying the 
offense charged in the Requesting State would also constitute 
an offense had they occurred in the Requested State. Paragraph 
3 makes it clear that there is no general requirement of dual 
criminality for cooperation. Thus, assistance may be provided 
even when the criminal matter under investigation in the 
Requesting State would not be a crime in the Requested State 
``. . . except where otherwise provided by this Treaty,'' a 
phrase which refers to Article 3(1)(e), under which the 
Requested State may, in its discretion, require dual 
criminality before executing a request under Article 14 
(involving searches and seizures) or Article 16 (involving 
asset forfeiture matters). Article 1(3) is important because 
United States and Antigua and Barbuda criminal law differ, and 
a general dual criminality rule would make assistance 
unavailable in many significant areas. This type of limited 
dual criminality provision is found in other U.S. mutual legal 
assistance treaties. \5\ During the negotiations, the United 
States delegation received assurances that assistance would be 
available under the Treaty to the United States in 
investigations of such offenses as conspiracy, drug 
trafficking, including continuing criminal enterprise (Title 
21, United States Code, Section 848), offenses under the 
racketeering statutes (Title 18, United States Code, Section 
1961-1968), money laundering, crimes against environmental 
protection laws, and antitrust violations.
---------------------------------------------------------------------------
    \5\ See e.g., U.S.-Argentina Treaty on Mutual Legal Assistance in 
Criminal Matters, Dec. 4, 1990, art. 1(3); U.S.-Philippines Treaty on 
Mutual Legal Assistance in Criminal Matters, Nov. 13, 1994, art. 1(3).
---------------------------------------------------------------------------
    While the Treaty does not require dual criminality in 
general, Antigua and Barbuda's delegation did raise questions 
about assistance in one area in which the criminal laws of the 
Parties differ. Since Antigua and Barbuda has no income tax 
legislation, it suggested that the Treaty restrict mutual 
assistance in tax cases, noting that such restrictions are 
contained in the United States' mutual legal assistance treaty 
with the United Kingdom regarding the Cayman Islands. The 
United States delegation was unwilling to agree that this 
Treaty be so limited, because criminal tax matters are often 
used to pursue and prosecute major criminals such as drug 
traffickers and organized crime figures. It was agreed that 
Article 1(4) should specify that ``[t]his treaty is intended 
solely for mutual legal assistance in criminal matters between 
the Parties as set forth in paragraph (1) above,'' thereby 
emphasizing that the Treaty applies only to criminal tax 
matters. At Antigua and Barbuda's request, diplomatic notes 
were exchanged at the time that the Treaty was signed 
indicating the Parties' agreement that Antigua and Barbuda may 
interpret Article 1 to exclude assistance under the Treaty for 
civil and administrative income tax matters that are unrelated 
to any criminal matter.
    Paragraph 4 contains a standard provision in United States 
mutual legal assistance treaties \6\ that states that the 
Treaty is intended solely for government-to-government mutual 
legal assistance. The Treaty is not intended to provide to 
private persons a means of evidence gathering, or to extend 
generally to civil matters. Private litigants in the United 
States may continue to obtain evidence from Antigua and Barbuda 
by letters rogatory, an avenue of international assistance that 
the Treaty leaves undisturbed. Similarly, the paragraph 
provides that the Treaty is not intended to create any right in 
a private person to suppress or exclude evidence provided 
pursuant to the Treaty, or to impede the execution of a 
request.
---------------------------------------------------------------------------
    \6\ United States v. Johnpoll, 739 F.2d 702 (2d Cir. 1984).
---------------------------------------------------------------------------

                     Article 2--Central Authorities

    This article requires that each Party establish a ``Central 
Authority'' for transmission, receipt, and handling of Treaty 
requests. The Central Authority of the United States would make 
all requests to Antigua and Barbuda on behalf of federal 
agencies, state agencies, and local law enforcement authorities 
in the United States. The Antigua and Barbuda Central Authority 
would make all requests emanating from officials in Antigua and 
Barbuda. The Central Authority for the Requesting State will 
exercise discretion as to the form and content of requests, and 
the number and priority of requests. The Central Authority of 
the Requested State is also responsible for receiving each 
request, transmitting it to the appropriate federal or state 
agency, court, or other authority for execution, and ensuring 
that a timely response is made.
    Paragraph 2 provides that the Attorney General or a person 
designated by the Attorney General will be the Central 
Authority for the United States. The Attorney General has 
delegated the authority to handle the duties of Central 
Authority under mutual assistance treaties to the Assistant 
Attorney General in charge of the Criminal Division. \7\ 
Paragraph 2 also states that the Attorney General of Antigua 
and Barbuda or a person designated by the Attorney General will 
serve as the Central Authority for Antigua and Barbuda.
---------------------------------------------------------------------------
    \7\ 28 C.F.R. Sec.  0.64-1. The Assistant Attorney General for the 
Criminal Division has in turn delegated this authority to the Deputy 
Assistant Attorneys General and the Director of the Criminal Division's 
Office of International Affairs, in accordance with the regulation. 
Directive No. 81, 45 Fed. Reg. 79,758 (1980), as corrected at 48 Fed. 
Reg. 54,595 (1983). That delegation was subsequently extended to the 
Deputy Directors of the Office of International Affairs. 59 Fed. Reg. 
42,160 (1994).
---------------------------------------------------------------------------
    Paragraph 3 states that the Central Authorities shall 
communicate directly with one another for the purposes of the 
Treaty. It is anticipated that such communication will be 
accomplished by telephone, telefax, or INTERPOL channels, or 
any other means, at the option of the Central Authorities 
themselves.

                  Article 3--Limitations on Assistance

    This article specifies the limited classes of cases in 
which assistance may be denied under the Treaty.
    Paragraph (1)(a) permits the Requested State to deny a 
request if it relates to an offense under military law that 
would not be an offense under ordinary criminal law. Similar 
provisions appear in many other U.S. mutual legal assistance 
treaties.
    Paragraph (1)(b) permits the Central Authority of the 
Requested State to deny a request if execution of the request 
would prejudice the security or other essential public 
interests of that State. All United States mutual legal 
assistance treaties contain provisions allowing the Requested 
State to decline to execute a request if execution would 
prejudice its essential interests.
    The delegations agreed that the word ``security'' would 
include cases in which assistance might involve disclosure of 
information that is classified for national security reasons. 
It is anticipated that the Department of Justice, in its role 
as Central Authority for the United States, would work closely 
with the Department of State and other government agencies to 
determine whether to execute a request that might fall in this 
category.
    The delegations also agreed that the phrase ``essential 
public interests'' was intended to narrowly limit the class of 
cases in which assistance may be denied. It would not be enough 
that the Requesting State's case is one that would be 
inconsistent with public policy had it been brought in the 
Requested State. Rather, the Requested State must be convinced 
that execution of the request would seriously conflict with 
significant public policy. An example might be a request 
involving prosecution by the Requesting State of conduct which 
occurred in the Requested State and is constitutionally 
protected in that State.
    However, it was agreed that ``essential public interests'' 
could include interests unrelated to national military or 
political security, and be invoked if the execution of a 
request would violate essential United States interests related 
to the fundamental purposes of the Treaty. For example, one 
fundamental purpose of the Treaty is to enhance law enforcement 
cooperation, and attaining that purpose would be hampered if 
sensitive law enforcement information available under the 
Treaty were to fall into the wrong hands. Therefore, the United 
States Central Authority may invoke paragraph (1)(b) to decline 
to provide sensitive or confidential drug related information 
pursuant to a request under this Treaty whenever it determines, 
after appropriate consultation with law enforcement, 
intelligence, and foreign policy agencies, that a senior 
foreign government official who will have access to the 
information is engaged in or facilitates the production or 
distribution of illegal drugs and is using the request to the 
prejudice of a U.S. investigation or prosecution. \8\
---------------------------------------------------------------------------
    \8\ This is consistent with the Senate resolution of advice and 
consent to ratification, e.g., of the mutual legal assistance treaties 
with Mexico, Canada, Belgium, Thailand, the Bahamas, and the United 
Kingdom Concerning the Cayman Islands. Cong. Rec. 13884, (1989) (treaty 
citations omitted). See also Staff of Senate Comm. on Foreign 
Relations, 100th Cong., 2nd Sess., Mutual Legal Assistance Treaty 
Concerning the Cayman Islands 67 (1988) (testimony of Mark M. Richard, 
Deputy Assistant Attorney General, Criminal Division, Department of 
Justice).
---------------------------------------------------------------------------
    In general, the mere fact that the execution of a request 
would involve the disclosure of records protected by bank or 
business secrecy in the Requested State would not justify 
invocation of the ``essential public interests'' provision. 
Indeed, a major objective of the Treaty is to provide a formal, 
agreed channel for making such information available for law 
enforcement purposes. In the course of the negotiations, the 
Antigua and Barbuda delegation expressed its view that in very 
exceptional and narrow circumstances the disclosure of business 
or banking secrets could be of such significant importance to 
its Government (e.g., if disclosure would effectively destroy 
an entire domestic industry rather than just a specific 
business entity) that it could prejudice that State's 
``essential public interests'' and entitle it to deny 
assistance. \9\ The U.S. delegation did not disagree that there 
might be such extraordinary circumstances, but emphasized its 
view that denials of assistance on this basis by either party 
should be extremely rare.
---------------------------------------------------------------------------
    \9\ The Antigua and Barbuda view of this provision is thus similar 
to the Swiss view of Article 3(2) of the U.S.-Switzerland Treaty. See 
Technical Analysis to the Treaty between the U.S. and Switzerland on 
Mutual Assistance in Criminal Matters, signed May 25, 1973. U.S. Senate 
Exec. F, 94th Cong. 2d Sess. p. 39 (1976).
---------------------------------------------------------------------------
    Paragraph (1)(c) permits the denial of a request if it is 
not made in conformity with the Treaty.
    Paragraph (1)(d) permits denial of a request if it involves 
a political offense. \10\ It is anticipated that the Central 
Authorities will employ jurisprudence similar to that used in 
the extradition treaties for determining what is a ``political 
offense.'' These restrictions are similar to those found in 
other mutual legal assistance treaties.
---------------------------------------------------------------------------
    \10\ Sections 19(2)(a) and 19(2)(b), Antigua Mutual Assistance Act 
1993.
---------------------------------------------------------------------------
    Paragraph (1)(e) permits denial of a request if there is no 
``dual criminality'' with respect to requests made pursuant to 
Article 14 (involving searches and seizures) or Article 16 
(involving asset forfeiture matters).
    Finally, Paragraph (1)(f) permits denial of the request if 
execution would be contrary to the Constitution of the 
Requested State. This provision was deemed necessary under the 
law of Antigua and Barbuda, \11\ and is similar to clauses in 
other United States mutual legal assistance treaties. \12\
---------------------------------------------------------------------------
    \11\ Section 19(2)(e), Antigua Mutual Assistance Act 1993.
    \12\ U.S.-Jamaica Mutual Legal Assistance Treaty, July 7, 1989, 
art. 2(1)(e); U.S.-Nigeria Mutual Legal Assistance Treaty, Sept. 13, 
1989, art. III(1)(d).
---------------------------------------------------------------------------
    Paragraph 2 is similar to Article 3(2) of the U.S.-
Switzerland Mutual Legal Assistance Treaty, \13\ and obliges 
the Requested State to consider imposing appropriate conditions 
on its assistance in lieu of denying a request outright 
pursuant to the first paragraph of the article. For example, a 
Contracting Party might request information that could be used 
either in a routine criminal case (which would be within the 
scope of the Treaty) or in a politically motivated prosecution 
(which would be subject to refusal). This paragraph would 
permit the Requested State to provide the information on the 
condition that it be used only in the routine criminal case. 
Naturally, the Requested State would notify the Requesting 
State of any proposed conditions before actually delivering the 
evidence in question, thereby according the Requesting State an 
opportunity to indicate whether it is willing to accept the 
evidence subject to the conditions. If the Requesting State 
does accept the evidence subject to the conditions, it must 
honor the conditions.
---------------------------------------------------------------------------
    \13\ U.S.-Switzerland Mutual Legal Assistance Treaty, May 25, 1973, 
art. 26, 27 U.S.T. 2019, T.I.A.S. No. 8302, 1052 U.N.T.S. 61.
---------------------------------------------------------------------------
    Paragraph 3 effectively requires that the Central Authority 
of the Requested State promptly notify the Central Authority of 
the Requesting State of the basis for any denial of assistance. 
This ensures that, when a request is only partly executed, the 
Requested State will provide some explanation for not providing 
all of the information or evidence sought. This should avoid 
misunderstandings, and enable the Requesting State to better 
prepare its requests in the future.

                Article 4--Form and Contents of Requests

    Paragraph 1 requires that requests be in writing, except 
that the Central Authority of the Requested State may accept a 
request in another form in ``emergency situations.'' A request 
in another form must be confirmed in writing within ten days 
unless the Central Authority of the Requested State agrees 
otherwise.
    Paragraph 2 lists the four kinds of information deemed 
crucial to the efficient operation of the Treaty which must be 
included in each request. Paragraph 3 outlines kinds of 
information that are important but not always crucial, and 
should be provided ``to the extent necessary and possible.'' In 
keeping with the intention of the Parties that requests be as 
simple and straightforward as possible, there is no requirement 
under the Treaty that a request be legalized or certified in 
any particular manner.

                    Article 5--Execution of Requests

    Paragraph 1 requires each Central Authority promptly to 
execute requests. The negotiators intended that the Central 
Authority, upon receiving a request, will first review the 
request, then promptly notify the Central Authority of the 
Requesting State if the request does not appear to comply with 
the Treaty's terms. If the request does satisfy the Treaty's 
requirements and the assistance sought can be provided by the 
Central Authority itself, the request will be fulfilled 
immediately. If the request meets the Treaty's requirements but 
its execution requires action by some other entity in the 
Requested State, the Central Authority will promptly transmit 
the request to the correct entity for execution.
    When the United States is the Requested State, it is 
anticipated that the Central Authority will transmit most 
requests to federal investigators, prosecutors, or judicial 
officials for execution if the Central Authority deems it 
appropriate to do so.
    Paragraph 1 further authorizes and requires the federal, 
state, or local agency or authority selected by the Central 
Authority to do everything within its power and take whatever 
action would be necessary to execute the request. This 
provision is not intended or understood to authorize the use of 
the grand jury in the United States for the collection of 
evidence pursuant to a request from Antigua and Barbuda. 
Rather, it is anticipated that when a request from Antigua and 
Barbuda requires compulsory process for execution, the 
Department of Justice would ask a federal court to issue the 
necessary process under Title 28, United States Code, Section 
1782, and the provisions of the Treaty. \14\
---------------------------------------------------------------------------
    \14\ This paragraph of the Treaty specifically authorizes United 
States courts to use all of their powers to issue subpoenas and other 
process to satisfy a request under the Treaty.
---------------------------------------------------------------------------
    The third sentence in Article 5(1) reads ``[t]he competent 
judicial or other authorities of the Requested State shall have 
power to issue subpoenas, search warrants, or other orders 
necessary to execute the request.'' This language reflects an 
understanding that the Parties intend to provide each other 
with every available form of assistance from judicial and 
executive branches of government in the execution of mutual 
assistance requests. The phrase refers to ``judicial or other 
authorities'' to include all those officials authorized to 
issue compulsory process that might be needed in executing a 
request. For example, in Antigua and Barbuda, justices of the 
peace and senior police officers are empowered to issue certain 
kinds of compulsory process under certain circumstances.
    Paragraph 2 states that the Central Authority of the 
Requested State shall make all necessary arrangements for and 
meet the costs of representing the Requesting State in any 
proceedings in the Requested State arising out of the request 
for assistance. Thus, it is understood that if execution of the 
request entails action by a judicial or administrative agency, 
the Central Authority of the Requested State shall arrange for 
the presentation of the request to that court or agency at no 
cost to the Requesting State. Since the cost of retaining 
counsel abroad to present and process letters rogatory is 
sometimes quite high, this provision for reciprocal legal 
representation in Paragraph 2 is a significant advance in 
international legal cooperation. It is also understood that 
should the Requesting State choose to hire private counsel for 
a particular request, it is free to do so at its own expense.
    Paragraph 3 is inspired by Article 5(5) of the U.S.-
Jamaican Mutual Legal Assistance Treaty \15\ and provides, that 
``[r]equests shall be executed in accordance with the internal 
laws and procedures of the Requested State, except to the 
extent that this Treaty provides otherwise.'' Thus, the method 
of executing a request for assistance under the Treaty must be 
in accordance with the Requested State's internal laws absent 
specific contrary procedures in the Treaty itself. Thus, 
neither State is expected to take any action pursuant to a 
Treaty request which would be prohibited under its internal 
laws. For the United States, the Treaty is intended to be self-
executing; no new or additional legislation will be needed to 
carry out the obligations undertaken.
---------------------------------------------------------------------------
    \15\ U.S.-Jamaica Mutual Legal Assistance Treaty, supra note 12.
---------------------------------------------------------------------------
    The same paragraph requires that procedures specified in 
the request shall be followed in the execution of the request 
except to the extent that those procedures cannot lawfully be 
followed in the Requested State. This provision is necessary 
for two reasons.
    First, there are significant differences between the 
procedures which must be followed by United States and 
authorities in Antigua and Barbuda in collecting evidence in 
order to assure the admissibility of that evidence at trial. 
For instance, United States law permits documentary evidence 
taken abroad to be admitted in evidence if the evidence is duly 
certified and the defendant has been given fair opportunity to 
test its authenticity. \16\ Antigua and Barbuda law currently 
contains no similar provision. Thus, documents assembled in 
Antigua and Barbuda in strict conformity with Antigua and 
Barbuda procedures on evidence might not be admissible in 
United States courts. Similarly, United States courts utilize 
procedural techniques such as videotape depositions to enhance 
the reliability of evidence taken abroad, and some of these 
techniques, while not forbidden, are not used in Antigua and 
Barbuda.
---------------------------------------------------------------------------
    \16\ Title 18, United States Code, Section 3505.
---------------------------------------------------------------------------
    Second, the evidence in question could be needed for 
subjection to forensic examination, and sometimes the 
procedures which must be followed to enhance the scientific 
accuracy of such tests do not coincide with those utilized in 
assembling evidence for admission into evidence at trial. The 
value of such forensic examinations could be significantly 
lessened--and the Requesting State's investigation could be 
retarded--if the Requested State were to insist unnecessarily 
on handling the evidence in a manner usually reserved for 
evidence to be presented to its own courts.
    Both delegations agreed that the Treaty's primary goal of 
enhancing law enforcement in the Requesting State could be 
frustrated if the Requested State were to insist on producing 
evidence in a manner which renders the evidence inadmissible or 
less persuasive in the Requesting State. For this reason, 
Paragraph 3 requires the Requested State to follow the 
procedure outlined in the request to the extent that it can, 
even if the procedure is not that usually employed in its own 
proceedings. However, if the procedure called for in the 
request is unlawful in the Requested State (as opposed to 
simply unfamiliar there), the appropriate procedure under the 
law applicable for investigations or proceedings in the 
Requested State will be utilized.
    Paragraph 4 states that a request for assistance need not 
be executed immediately when the Central Authority of the 
Requested State determines that execution would interfere with 
an ongoing investigation or legal proceeding in the Requested 
State. The Central Authority of the Requested State may, in its 
discretion, take such preliminary action as deemed advisable to 
obtain or preserve evidence that might otherwise be lost before 
the conclusion of the investigation or legal proceedings in 
that State. The paragraph also allows the Requested State to 
provide the information sought to the Requesting State subject 
to conditions needed to avoid interference with the Requested 
State's proceedings.
    It is anticipated that some United States requests for 
assistance may contain information which under our law must be 
kept confidential. For example, it may be necessary to set out 
information that is ordinarily protected by Rule 6(e), Federal 
Rules of Criminal Procedure, in the course of an explanation of 
``the subject matter and nature of the investigation, 
prosecution, or proceeding'' as required by Article (2)(b). 
Therefore, Paragraph 5 of Article 5 enables the Requesting 
State to call upon the Requested State to keep the information 
in the request confidential. \17\ If the Requested State cannot 
execute the request without disclosing the information in 
question (as might be the case if execution requires a public 
judicial proceeding in the Requested State), or if for some 
other reason this confidentiality cannot be assured, the Treaty 
obliges the Requested State to so indicate, thereby giving the 
Requesting State an opportunity to withdraw the request rather 
than risk jeopardizing an investigation or proceeding by public 
disclosure of the information.
---------------------------------------------------------------------------
    \17\ This provision is similar to language in other United States 
mutual legal assistance treaties. See e.g., U.S.-Mexico Mutual Legal 
Assistance Treaty, Dec. 9, 1987, art. 4(5); U.S.-Canada Mutual Legal 
Assistance Treaty, Mar. 18, 1985; art. 6(5), U.S.-Italy Mutual Legal 
Assistance Treaty, Nov. 9, 1982, art. 8(2); US.-Philippines Mutual 
Legal Assistance Treaty, supra note 5, art. 5(5).
---------------------------------------------------------------------------
    Paragraph 6 states that the Central Authority of the 
Requested State shall respond to reasonable inquiries by the 
Requesting State concerning progress of its request. This is to 
encourage open communication between the Central Authorities in 
monitoring the status of specific requests.
    Paragraph 7 requires that the Central Authority of the 
Requested State promptly notify the Central Authority of the 
Requesting State of the outcome of the execution of a request. 
If the assistance sought is not provided, the Central Authority 
of the Requested State must also explain the basis for the 
outcome to the Central Authority of the Requesting State. For 
example, if the evidence sought could not be located, the 
Central Authority of the Requested State would report that fact 
to the Central Authority of the Requesting State.

                            Article 6--Costs

    This article reflects the increasingly accepted 
international rule that each State shall bear the expenses 
incurred within its territory in executing a legal assistance 
treaty request. This is consistent with similar provisions in 
other United States mutual legal assistance treaties. \18\ 
Article 6 states that the Requesting State will pay fees of 
expert witnesses, translation, interpretation and transcription 
costs, and allowances and expenses related to travel of persons 
pursuant to Articles 10 and 11.
---------------------------------------------------------------------------
    \18\ See e.g., U.S.-Canada Mutual Legal Assistance Treaty, supra 
note 17, art. 8; U.S.-Philippines Mutual Legal Assistance Treaty, supra 
note 5, art. 6.
---------------------------------------------------------------------------

                     Article 7--Limitations on Use

    Paragraph 1 states that the Central Authority of the 
Requested State may require that information provided under the 
Treaty not be used for any purpose other than that stated in 
the request without the prior consent of the Requested State. 
If such confidentiality is requested, the Requesting State must 
comply with the conditions. It will be recalled that Article 
4(2)(d) states that the Requesting State must specify the 
purpose for which the information or evidence sought under the 
Treaty is needed.
    It is not anticipated that the Central Authority of the 
Requested State will routinely request use limitations under 
paragraph 1. Rather, it is expected that such limitations will 
be requested sparingly, only when there is good reason to 
restrict the utilization of the evidence.
    Paragraph 2 states that the Requested State may request 
that the information or evidence it provides to the Requesting 
State be kept confidential. Under most United States mutual 
legal assistance treaties, conditions of confidentiality are 
imposed only when necessary, and are tailored to fit the 
circumstances of each particular case. For instance, the 
Requested State may wish to cooperate with the investigation in 
the Requesting State but choose to limit access to information 
which might endanger the safety of an informant, or unduly 
prejudice the interests of persons not connected in any way 
with the matter being investigated in the Requesting State. 
Paragraph 2 requires that if conditions of confidentiality are 
imposed, the Requesting State need only make ``best efforts'' 
to comply with them. This ``best efforts'' language was used 
because the purpose of the Treaty is the production of evidence 
for use at trial, and that purpose would be frustrated if the 
Requested State could routinely permit the Requesting State to 
see valuable evidence, but impose confidentiality restrictions 
which prevent the Requesting State from using it.
    The Antigua and Barbuda delegation expressed concern that 
information it might supply in response to a request by the 
United States under the Treaty not be disclosed under the 
Freedom of Information Act. Both delegations agreed that since 
this article permits the Requested State to prohibit the 
Requesting State's disclosure of information for any purpose 
other than that stated in the request, a Freedom of Information 
Act request that seeks information that the United States 
obtained under the Treaty would have to be denied if the United 
States received the information on the condition that it be 
kept confidential.
    If the United States Government were to receive evidence 
under the Treaty that seems to be exculpatory to the defendant 
in another case, the United States might be obliged to share 
the evidence with the defendant in the second case. Brady v. 
Maryland, 373 U.S. 83 (1963). Therefore, Paragraph 3 states 
that nothing in Article 7 shall preclude the use or disclosure 
of information to the extent that there is an obligation to do 
so under the Constitution of the Requesting State in a criminal 
prosecution. Any such proposed disclosure and the provision of 
the Constitution under which such disclosure is required shall 
be notified by the Requesting State to the Requested State in 
advance.
    Paragraph 4 states that once evidence obtained under the 
Treaty has been revealed to the public in accordance with 
Paragraph 1 or 2, the Requesting State is free to use the 
evidence for any purpose. Once evidence obtained under the 
Treaty has been revealed to the public in a trial, that 
information effectively becomes part of the public domain, and 
is likely to become a matter of common knowledge, perhaps even 
be described in the press. The negotiators noted that once this 
has occurred, it is practically impossible for the Central 
Authority of the Requesting State to block the use of that 
information by third parties.
    It should be noted that under Article 1(4), the 
restrictions outlined in Article 7 are for the benefit of the 
Contracting Parties, and the invocation and enforcement of 
these provisions are left entirely to the Contracting Parties. 
If a person alleges that a Antigua and Barbuda authority seeks 
to use information or evidence obtained from the United States 
in a manner inconsistent with this article, the person can 
inform the Central Authority of the United States of the 
allegations for consideration as a matter between the 
Contracting Parties.

        Article 8--Testimony or Evidence in the Requested State

    Paragraph 1 states that a person in the Requested State 
from whom testimony or evidence is sought shall be compelled, 
if necessary, to appear and testify or produce items, including 
documents, records, or articles of evidence. The compulsion 
contemplated by this article can be accomplished by subpoena or 
any other means available under the law of the Requested State.
    Paragraph 2 requires that, upon request, the Requested 
State shall furnish information in advance about the date and 
place of the taking of testimony or evidence.
    Paragraph 3 provides that any persons specified in the 
request, including the defendant and his counsel in criminal 
cases, shall be permitted by the Requested State to be present 
and pose questions during the taking of testimony under this 
article. Paragraph 4, when read together with Article 5(3), 
ensures that no person will be compelled to furnish information 
if he has a right not to do so under the law of the Requested 
State. Thus, a witness questioned in the United States pursuant 
to a request from Antigua and Barbuda is guaranteed the right 
to invoke any of the testimonial privileges (i.e., attorney 
client, interspousal) available in the United States as well as 
the constitutional privilege against self-incrimination, to the 
extent that it might apply in the context of evidence being 
taken for foreign proceedings. \19\ A witness testifying in 
Antigua and Barbuda may raise any of the similar privileges 
available under the law of Antigua and Barbuda.
---------------------------------------------------------------------------
    \19\ This is consistent with the approach taken in Title 28, United 
States Code, Section 1782.
---------------------------------------------------------------------------
    Paragraph 4 does require that if a witness attempts to 
assert a privilege that is unique to the Requesting State, the 
Requested State will take the desired evidence and turn it over 
to the Requesting State along with notice that it was obtained 
over a claim of privilege. The applicability of the privilege 
can then be determined in the Requesting State, where the scope 
of the privilege and the legislative and policy reasons 
underlying the privilege are best understood. A similar 
provision appears in many of our recent mutual legal assistance 
treaties. \20\
---------------------------------------------------------------------------
    \20\ See e.g., U.S.-Netherlands Mutual Legal Assistance Treaty, 
June 12, 1981, art. 5(1), T.I.A.S. No. 10734, 1359 U.N.T.S. 209; U.S.-
Bahamas Mutual Legal Assistance Treaty, June 12 & Aug. 18, 1987, art. 
9(2); U.S.-Mexico Mutual Legal Assistance Treaty, supra note 17, art. 
7(2); U.S.-Philippines Mutual Legal Assistance Treaty, supra note 5, 
art. 8(4).
---------------------------------------------------------------------------
    Paragraph 5 states that evidence produced pursuant to this 
article may be authenticated by an attestation, including, in 
the case of business records, authentication in the manner 
indicated in Form A appended to the Treaty. Thus, the provision 
establishes a procedure for authenticating records in a manner 
essentially similar to Title 18, United States Code, Section 
3505. It is understood that the second and third sentences of 
this paragraph provide for the admissibility of authenticated 
documents as evidence without additional foundation or 
authentication. With respect to the United States, this 
paragraph is self-executing, and does not need implementing 
legislation.
    Article 8(5) provides that the evidence authenticated by 
Form A is ``admissible,'' but of course, it will be up to the 
judicial authority presiding over the trial to determine 
whether the evidence should in fact be admitted. The 
negotiators intended that evidentiary tests other than 
authentication (such as relevance and materiality) would still 
have to be satisfied in each case.

               Article 9--Records of Government Agencies

    Paragraph 1 obliges each Party to furnish the other with 
copies of publicly available records, including documents or 
information in any form, possessed by a government department 
or agency in the Requested State. The term ``government 
departments and agencies'' includes all executive, judicial, 
and legislative units of the Federal, State, and local level in 
each country.
    Paragraph 2 provides that the Requested State may share 
with its treaty partner copies of nonpublic information in 
government files. The obligation under this provision is 
discretionary, and such requests may be denied in whole or in 
part. Moreover, the article states that the Requested State may 
only exercise its discretion to turn over information in its 
files ``to the same extent and under the same conditions'' as 
it would to its own law enforcement or judicial authorities. It 
is intended that the Central Authority of the Requested State, 
in close consultation with the interested law enforcement 
authorities of that State, will determine that extent and what 
those conditions would be.
    The discretionary nature of this provision was deemed 
necessary because government files in each State contain some 
kinds of information that would be available to investigative 
authorities in that State, but that justifiably would be deemed 
inappropriate to release to a foreign government. For example, 
assistance might be deemed inappropriate where the information 
requested would identify or endanger an informant, prejudice 
sources of information needed in future investigations, or 
reveal information that was given to the Requested State in 
return for a promise that it not be divulged. Of course, a 
request could be denied under this clause if the Requested 
State's law bars disclosure of the information.
    The delegations discussed whether this article should serve 
as a basis for exchange of information in tax matters. It was 
the intention of the United States delegation that the United 
States be able to provide assistance under the Treaty for tax 
offenses, as well as to provide information in the custody of 
the Internal Revenue Service for both tax offenses and non-tax 
offenses under circumstances that such information is available 
to U.S. law enforcement authorities. The United States 
delegation was satisfied after discussion that this Treaty is a 
``convention relating to the exchange of tax information'' for 
purposes of Title 26, United States Code, Section 6103(k)(4), 
and the United States would have the discretion to provide tax 
return information to Antigua and Barbuda under this article in 
appropriate cases. \21\ Paragraph 3 states that documents 
provided under this article may be authenticated in accordance 
with the procedures specified in the request, and if 
authenticated in this manner, the evidence shall be admissible 
in evidence in the Requesting State. Thus, the Treaty 
establishes a procedure for authenticating official foreign 
documents that is consistent with Rule 902(3) of the Federal 
Rules of Evidence and Rule 44, Federal Rules of Civil 
Procedure.
---------------------------------------------------------------------------
    \21\ Thus, this treaty, like all of the other U.S. bilateral mutual 
legal assistance treaties, authorizes the Contracting Parties to 
provide tax return information in appropriate circumstances.
---------------------------------------------------------------------------
    Paragraph 3, similar to Article 8(5), states that documents 
authenticated under this paragraph shall be ``admissible'' but 
it will, of course, be up to the judicial authority presiding 
over the trial to determine whether the evidence should in fact 
be admitted. The evidentiary tests other than authentication 
(such as relevance or materiality) must be established in each 
case.

             Article 10--Testimony in the Requesting State

    This article provides that upon request, the Requested 
State shall invite persons located in its territory to travel 
to the Requesting State to appear before an appropriate 
authority there. It shall notify the Requesting State of the 
invitee's response. An appearance in the Requesting State under 
this article is not mandatory, and the invitation may be 
refused by the prospective witness. The Requesting State would 
be expected to pay the expenses of such an appearance pursuant 
to Article 6 if requested by the person whose appearance is 
sought. Paragraph 1 provides that the witness shall be informed 
of the amount and kind of expenses which the Requesting State 
will provide in a particular case. It is assumed that such 
expenses would normally include the costs of transportation and 
room and board. When the witness is to appear in the United 
States, a nominal witness fee would also be provided.
    Paragraph 2 provides that the Central Authority of the 
Requesting State shall inform the Central Authority of the 
Requested State whether any decision has been made that a 
person who is in the Requesting State pursuant to this article 
shall not be subject to service of process, or be detained or 
subjected to any restriction of personal liberty while he is in 
the Requesting State. Most U.S. mutual legal assistance 
treaties anticipate that the Central Authority will determine 
whether to extend such safe conduct, but under the Treaty with 
Antigua and Barbuda, the Central Authority merely reports 
whether safe conduct has been extended. This is because in 
Antigua and Barbuda only the Director of Public Prosecutions 
can extend such safe conduct, and the Attorney General (who is 
Central Authority for Antigua and Barbuda under Article 3 of 
the Treaty) cannot do so. This ``safe conduct'' is limited to 
acts or convictions that preceded the witness's departure from 
the Requested State. It is understand that this provision would 
not prevent the prosecution of a person for perjury or any 
other crime committed while in the Requesting State.
    Paragraph 3 states that any safe conduct guaranteed in this 
article expires seven days after the Central Authority of the 
Requesting State has notified the Central Authority of the 
Requested State that the person's presence is no longer 
required, or if the person leaves the territory of the 
Requesting State and thereafter returns to it. However, the 
competent authorities of the Requesting State may extend the 
safe conduct up to fifteen days if they determine that there is 
good cause to do so. For the United States, the ``competent 
authorities'' for these purposes would be the Central 
Authority.

               Article 11--Transfer of Persons in Custody

    In some criminal cases, a need arises for the testimony in 
one country of a witness in custody in another country. In some 
instances, foreign countries are willing and able to ``lend'' 
witnesses to the United States Government, provided the 
witnesses would be carefully guarded while in the United States 
and returned to the foreign country at the conclusion of the 
testimony. On occasion, the United States Justice Department 
has been able to arrange for consenting federal inmates in the 
United States to be transported to foreign countries to assist 
in criminal proceedings. \22\
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    \22\ For example, in September, 1986, the United States Justice 
Department and the United States Drug Enforcement Administration 
arranged for four federal prisoners to be transported to the United 
Kingdom to testify for the Crown in Regina v. Dye, Williamson, Ells, 
Davies, Murphy, and Millard, a major narcotics prosecution in ``the Old 
Bailey'' (Central Criminal Court) in London.
---------------------------------------------------------------------------
    Paragraph 1 provides an express legal basis for cooperation 
in these matters. It is based on Article 26 of the U.S.-
Switzerland Mutual Legal Assistance Treaty, \23\ which in turn 
is based on Article 11 of the European Convention on Mutual 
Assistance in Criminal Matters. \24\
---------------------------------------------------------------------------
    \23\ U.S.-Switzerland Mutual Legal Assistance Treaty, supra note 
13, art. 26.
    \24\ See also Title 18, United States Code, Section 3508, which 
provides for the transfer to the United States of witnesses in custody 
in other States whose testimony is needed at a federal criminal trial. 
It is also consistent with Section 24, Antigua Mutual Assistance Act 
1993.
---------------------------------------------------------------------------
    Paragraph 2 provides that a person in the custody of the 
Requesting State whose presence in the Requested State is 
sought for purposes of assistance under this Treaty may be 
transferred from the Requesting State to the Requested State 
for that purpose if the person consents and if the Central 
Authorities of both States agree. This would also cover 
situations in which a person in custody in the United States on 
a criminal matter has sought permission to travel to another 
country to be present at a deposition being taken there in 
connection with the case. \25\
---------------------------------------------------------------------------
    \25\ See also United States v. King, 552 F.2d 833 (9th Cir. 1976), 
cert. denied, 430 U.S. 966 (1977), where the defendants insisted on 
traveling to Japan to be present at the deposition of certain witnesses 
in prison there.
---------------------------------------------------------------------------
    Paragraph 3 provides express authority for the receiving 
State to maintain such a person in custody throughout the 
persons stay there, unless the sending State specifically 
authorizes release. This paragraph also authorizes the 
receiving State to return the person in custody to the sending 
State, and provides that this return will occur in accordance 
with terms and conditions agreed upon by the Central 
Authorities. The initial transfer of a person under this 
article requires the consent of the person involved and of both 
Central Authorities, but the provision does not require the 
person's consent for return to the sending State.
    Once the receiving State has agreed to assist the sending 
State's investigation or proceeding pursuant to this article, 
it would be inappropriate for the receiving State to hold the 
person transferred and require extradition proceedings before 
allowing him to return to the sending State as agreed. 
Therefore, Paragraph (3)(c) contemplates that extradition 
proceedings will not be required before the status quo is 
restored by the return of the person transferred. Paragraph 
(3)(d) states that the person is to receive credit for time 
served while in the custody of the receiving State. This is 
consistent with United States practice in these matters.
    Article 11 does not provide for any specific ``safe 
conduct'' for persons transferred under this article, because 
it is anticipated that the authorities of the two countries 
will deal with such situations on a case-by-case basis. If the 
person in custody is unwilling to be transferred without safe 
conduct, and the receiving State is unable or unwilling to 
provide satisfactory assurances in this regard, the person is 
free to decline to be transferred.

       Article 12--Location or Identification of Persons or Items

    This article provides for ascertaining the whereabouts in 
the Requested State of persons (such as witnesses, potential 
defendants, or experts) or items if the Requesting State seeks 
such information. This is a standard provision contained in all 
United States mutual legal assistance treaties. The Treaty 
requires only that the Requested State make ``best efforts'' to 
locate the persons or items sought by the Requesting State. 
\26\ The extent of such efforts will vary, of course, depending 
on the quality and extent of the information provided by the 
Requested State concerning the suspected location and last 
known location.
---------------------------------------------------------------------------
    \26\ This is consistent with Section 21, Antigua Mutual Assistance 
Act 1993.
---------------------------------------------------------------------------
    The obligation to locate persons or items is limited to 
persons or items that are or may be in the territory of the 
Requested State. Thus, the United States would not be obliged 
to attempt to locate persons or items which may be in third 
countries. In all cases, the Requesting State would be expected 
to supply all available information about the last known 
location of the persons or items sought.

                    Article 13--Service of Documents

    This article creates an obligation on the Requested State 
to use its best efforts to effect the service of documents such 
as summons, complaints, subpoenas, or other legal papers 
relating in whole or in part to a Treaty request. This is 
consistent with Antigua and Barbuda law, \27\ and identical 
provisions appear in several U.S. mutual legal assistance 
treaties.
---------------------------------------------------------------------------
    \27\ Section 25, Antigua Mutual Assistance Act 1993.
---------------------------------------------------------------------------
    It is expected that when the United States is the Requested 
State, service under the Treaty will be made by registered mail 
(in the absence of any request by Antigua and Barbuda to follow 
a specified procedure for service) or by the United States 
Marshal's Service in instances in which personal service is 
requested.
    Paragraph 2 provides that when the documents to be served 
call for the appearance of a person in the Requesting State, 
the documents should be received by the Central Authority of 
the Requested State a reasonable time before the date set for 
any such appearance.
    Paragraph 3 requires that proof of service be returned to 
the Requesting State in the manner specified in the request.

                     Article 14--Search and Seizure

    It is sometimes in the interests of justice for one State 
to ask another to search for, secure, and deliver articles or 
objects needed in the former as evidence or for other purposes. 
United States courts can and do execute such requests under 
Title 28, United States Code, Section 1782. \28\ This article 
creates a formal framework for handling such requests.
---------------------------------------------------------------------------
    \28\ See e.g., United States ex Rel. Public Prosecutor of 
Rotterdam, Netherlands v. Van Aalst, Case No 84-52-M-01 (M.D. Fla., 
Orlando Div.) (search warrant issued February 24, 1984). Antigua's 
courts, too, have the power to execute such requests under Section 22, 
Antigua Mutual Assistance Act 1993.
---------------------------------------------------------------------------
    Article 14 requires that the search and seizure request 
include ``information justifying such action under the laws of 
the Requested State.'' This means that normally a request to 
the United States from Antigua and Barbuda will have to be 
supported by a showing of probable cause for the search. A 
United States request to Antigua and Barbuda would have to 
satisfy the corresponding evidentiary standard there, which is 
``a reasonable basis to believe'' that the specified premises 
contains articles likely to be evidence of the commission of an 
offense.
    Paragraph 2 is designed to ensure that a record is kept of 
articles seized and of articles delivered up under the Treaty. 
This provision effectively requires that, upon request, every 
official who has custody of a seized item shall certify, 
through the use of Form C appended to this Treaty, the 
continuity of custody, the identity of the item, and the 
integrity of its condition.
    The article also provides that the certificates describing 
continuity of custody will be admissible without additional 
authentication at trial in the Requesting State, thus relieving 
the Requested State of the burden, expense, and inconvenience 
of having to send its law enforcement officers to the 
Requesting State to provided authentication and chain of 
custody testimony each time the Requesting State uses evidence 
produced under this article. As in Articles 8(5) and 9(3), the 
injunction that the certificates be admissible without 
additional authentication at trial leaves the trier of fact 
free to bar use of the evidence itself, in spite of the 
certificate, if there is some other reason to do so aside from 
authenticity or chain of custody.
    Paragraph 3 states that the Requested State may require 
that the Requesting State agree to terms and conditions 
necessary to protect the interests of third parties in the item 
to be transferred. This article is similar to provisions in 
many other United States mutual legal assistance treaties. \29\
---------------------------------------------------------------------------
    \29\ See e.g., U.S.-Argentina Mutual Legal Assistance Treaty, supra 
note 5; U.S.-Bahamas Mutual Legal Assistance Treaty, supra note 20; 
U.S.-Canada Mutual Legal Assistance Treaty, supra note 17; U.S.-U.K. 
Mutual Legal Assistance Treaty Concerning the Cayman Islands, Jul. 3, 
1986; U.S.-Hungary Mutual Legal Assistance Treaty, Dec. 1, 1994; U.S.-
Korea Mutual Legal Assistance Treaty, Nov. 23, 1993; U.S.-Panama Mutual 
Legal Assistance Treaty, Apr. 11, 1991; U.S.-Philippines Mutual Legal 
Assistance Treaty, supra note 5; U.S.-Spain Mutual Legal Assistance 
Treaty, Nov. 20, 1990; U.S.-United Kingdom Mutual Legal Assistance 
Treaty, Jan. 6, 1994.
---------------------------------------------------------------------------

                      Article 15--Return of Items

    This article provides that any documents or items of 
evidence furnished under the Treaty must be returned to the 
Requested State as soon as possible. The delegations understood 
that this requirement would be invoked only if the Central 
Authority of the Requested State specifically requests it at 
the time that the items are delivered to the Requesting State. 
It is anticipated that unless original records or articles of 
significant intrinsic value are involved, the Requested State 
will not usually request return of the items, but this is a 
matter best left to development in practice.

            Article 16--Assistance in Forfeiture Proceedings

    A major goal of the Treaty is to enhance the efforts of 
both the United States and Antigua and Barbuda in combating 
narcotics trafficking. One significant strategy in this effort 
is action by United States authorities to seize and confiscate 
money, property, and other proceeds of drug trafficking.
    This article is similar to a number of United States mutual 
legal assistance treaties, including Article 17 of the U.S.-
Canada Mutual Legal Assistance Treaty and Article 15 of the 
U.S.-Thailand Mutual Legal Assistance Treaty. Paragraph 1 
authorizes the Central Authority of one State to notify the 
other of the existence in the latter's territory of proceeds or 
instrumentalities of offenses that may be forfeitable or 
otherwise subject to seizure. The term ``proceeds or 
instrumentalities'' was intended to include things such as 
money, vessels, or other valuables either used in the crime or 
purchased or obtained as a result of the crime.
    Upon receipt of notice under this article, the Central 
Authority of the State in which the proceeds or 
instrumentalities are located may take whatever action is 
appropriate under its law. For instance, if the assets in 
question are located in the United States and were obtained as 
a result of a fraud in Antigua and Barbuda, they could be 
seized under 18 U.S.C. 981 in aid of a prosecution under Title 
18, United States Code, Section 2314, \30\ or be subject to a 
temporary restraining order in anticipation of a civil action 
for the return of the assets to the lawful owner. Proceeds of a 
foreign kidnapping, robbery, extortion or a fraud by or against 
a foreign bank are civilly and criminally forfeitable in the 
U.S. since these offenses are predicate offenses under U.S. 
money laundering laws. \31\ Thus, it is a violation of United 
States criminal law to launder the proceeds of these foreign 
fraud or theft offenses, when such proceeds are brought into 
the United States.
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    \30\ This statute makes it an offense to transport money or 
valuables in interstate or foreign commerce knowing that they were 
obtained by fraud in the United States or abroad.
    \31\ Title 18, United States Code, Section 1956(c)(7)(B).
---------------------------------------------------------------------------
    If the assets are the proceeds of drug trafficking, it is 
especially likely that the Contracting Parties will be able and 
willing to help one another. Title 18, United States Code, 
Section 981(a)(1)(B), allows for the forfeiture to the United 
States of property ``which represents the proceeds of an 
offense against a foreign nation involving the manufacture, 
importation, sale, or distribution of a controlled substance 
(as such term is defined for the purposes of the Controlled 
Substance Act) within whose jurisdiction such offense or 
activity would be punishable by death or imprisonment for a 
term exceeding one year if such act or activity had occurred 
within the jurisdiction of the United States.'' This is 
consistent with the laws in other countries, such as 
Switzerland and Canada, and there is a growing trend among 
nations toward enacting legislation of this kind in the battle 
against narcotics trafficking. \32\ The United States 
delegation expects that Article 16 of the Treaty will enable 
this legislation to be even more effective.
---------------------------------------------------------------------------
    \32\ Article 5 of the United Nations Convention Against Illicit 
Traffic in Narcotic Drugs and Psychotropic Substances, calls for the 
States that are party to enact legislation to forfeit illicit drug 
proceeds and to assist one another in such matters. United Nations 
Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic 
Substances, with annex and final act, done at Vienna, Dec. 20, 1988.
---------------------------------------------------------------------------
    Paragraph 2 states that the Parties shall assist one 
another to the extent permitted by their laws in proceedings 
relating to the forfeiture of the proceeds or instrumentalities 
of offenses, to restitution to crime victims, or to the 
collection of fines imposed as sentences in criminal 
convictions. It specifically recognizes that the authorities in 
the Requested State may take immediate action to temporarily 
immobilize the assets pending further proceedings. Thus, if the 
law of the Requested State enables it to seize assets in aid of 
a proceeding in the Requesting State or to enforce a judgment 
of forfeiture levied in the Requesting State, the Treaty 
provides that the Requested State shall do so. The language of 
the article is carefully selected, however, so as not to 
require either State to take any action that would exceed its 
internal legal authority. It does not mandate institution of 
forfeiture proceedings or initiation of temporary 
immobilization in either country against property identified by 
the other if the relevant prosecution authorities do not deem 
it proper to do so. \33\
---------------------------------------------------------------------------
    \33\ In Antigua and Barbuda, unlike the U.S., the law does not 
currently allow for civil forfeiture. However, Antigua and Barbuda law 
does permit forfeiture in criminal cases, and ordinarily a defendant 
must be convicted in order for Antigua and Barbuda to confiscate the 
defendant's property.
---------------------------------------------------------------------------
    United States law permits the government to transfer a 
share of certain forfeited property to other countries that 
participate directly or indirectly in the seizure or forfeiture 
of the property. Under regulations promulgated by the Attorney 
General, the amount transferred generally reflects the 
contribution of the foreign government in law enforcement 
activity which led to the seizure and forfeiture of the 
property. The law requires that the transfer be authorized by 
an international agreement between the United States and the 
foreign country, and be approved by the Secretary of State. 
\34\ Paragraph 3 is consistent with this framework, and will 
enable a Contracting Party having custody over proceeds or 
instrumentalities of offenses to transfer forfeited assets, or 
the proceeds of the sale of such assets, to the other 
Contracting Party, at the former's discretion and to the extent 
permitted by their respective laws.
---------------------------------------------------------------------------
    \34\ See Title 18, United States Code, Section 981 (i)(1).
---------------------------------------------------------------------------

           Article 17--Compatibility with Other Arrangements

    This article states that assistance and procedures provided 
by this Treaty shall not prevent assistance under any other 
applicable international agreements. Article 17 also provides 
that the Treaty shall not be deemed to prevent recourse to any 
assistance available under the internal laws of either country. 
Thus, the Treaty would leave the provisions of United States 
and Antigua and Barbuda law on letters rogatory completely 
undisturbed, and would not alter any pre-existing agreements 
concerning investigative assistance.

                        Article 18--Consultation

    Experience has shown that as the parties to a treaty of 
this kind work together over the years, they become aware of 
various practical ways to make the treaty more effective and 
their own efforts more efficient. This article anticipates that 
the Contracting Parties will share those ideas with one 
another, and encourages them to agree on the implementation of 
such measures. Practical measures of this kind might include 
methods of keeping each other informed of the progress of 
investigations and cases in which Treaty assistance was 
utilized, or the use of the Treaty to obtain evidence that 
otherwise might be sought via methods less acceptable to the 
Requested State. Very similar provisions are contained in 
recent United States mutual legal assistance treaties. \35\ It 
is anticipated that the Central Authorities will conduct annual 
consultations pursuant to this article.
---------------------------------------------------------------------------
    \35\ See e.g., U.S.-Philippines Mutual Legal Assistance Treaty, 
supra note 5, art. 18; U.S.-Canada Mutual Legal Assistance Treaty, 
supra note 17, art. XVIII; U.S.-U.K. Mutual Legal Assistance Treaty 
Concerning the Cayman Islands, supra note 29, art. 18; U.S.-Argentina 
Mutual Legal Assistance Treaty, supra note 5, art. 18.
---------------------------------------------------------------------------

      Article 19--Ratification, Entry Into Force, and Termination

    Paragraph 1 contains standard provisions on the procedure 
for ratification and the exchange of the instruments of 
ratification
    Paragraph 2 provides that the Treaty shall enter into force 
immediately upon the exchange of instruments of ratification.
    Paragraph 3 provides that the Treaty shall apply to any 
request presented pursuant to it after it enters into force, 
even if the relevant acts or omissions occurred before the date 
on which the Treaty entered into force. Provisions of this kind 
are common in law enforcement agreements.
    Paragraph 4 contains standard provisions concerning the 
procedure for terminating the Treaty. Termination shall take 
effect six months after the date of written notification. 
Similar termination provisions are included in other United 
States mutual legal assistance treaties.

 Technical Analysis of The Treaty Between the United States of America 
         and Australia on Mutual Assistance in Criminal Matters

    On April 30, 1997, the United States signed a treaty with 
Australia on Mutual Assistance in Criminal Matters (``the 
Treaty''). In recent years, the United States has signed 
similar treaties with a number of countries as part of a highly 
successful effort to modernize the legal tools available to law 
enforcement authorities in need of foreign evidence for use in 
criminal cases.
    The Treaty with Australia is expected to be especially 
useful to the United States in its efforts to combat organized 
crime, transnational terrorism, international drug trafficking, 
and other offenses.
    It is anticipated that the Treaty will be implemented in 
the United States pursuant to the procedural framework provided 
by Title 28, United States Code, Section 1782. Australia has 
its own mutual assistance laws in place for implementing the 
Treaty, and does not anticipate enacting new legislation. \1\
---------------------------------------------------------------------------
    \1\ Mutual Assistance in Criminal Matters Act (1987), as amended, 
hereinafter ``Mutual Assistance Act.''
---------------------------------------------------------------------------
    The following technical analysis of the Treaty was prepared 
by the Office of International Affairs, United States 
Department of Justice, and the Office of the Legal Adviser, 
United States Department of State, based upon the negotiating 
notes. The technical analysis includes a discussion of U.S. law 
and relevant practice as of the date of its preparation, which 
are, of course, subject to change. Foreign law discussions 
reflect the current state of that law, to the best of the 
drafters' knowledge.

                     Article 1--Scope of Assistance

    Paragraph 1 requires the Parties to provide mutual 
assistance in connection with the investigation, prosecution, 
and prevention of offenses, and in proceedings relating to 
criminal matters.
    The negotiators specifically agreed that the term 
``investigations'' includes grand jury proceedings in the 
United States and similar pre-charge proceedings in Australia, 
and other legal measures taken prior to the filing of formal 
charges in either State. \2\ The term ``proceedings'' was 
intended to cover the full range of proceedings in a criminal 
case, including such matters as bail and sentencing hearings. 
\3\ It was also agreed that since the phrase ``proceedings 
related to criminal matters'' is broader than the 
investigation, prosecution or sentencing process itself, 
proceedings covered by the Treaty need not be strictly criminal 
in nature. For example, proceedings to forfeit to the 
government the proceeds of illegal drug trafficking may be 
civil in nature; \4\ yet such proceedings are covered by the 
Treaty.
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    \2\ The requirement that assistance be provided under the Treaty at 
the pre-indictment stage is critical to the U.S., as our investigators 
and prosecutors often need to obtain evidence from foreign countries in 
order to determine whether or not to file criminal charges. This 
obligation is a reciprocal one; the U.S. must assist Australia under 
the Treaty in connection with investigations prior to charges being 
filed in Australia. Prior to the 1996 amendment of Title 28, United 
States Code, Section 1782, some U.S. courts had interpreted that 
provision to require that assistance be provided in criminal matters 
only if formal charges have already been filed abroad, or are 
``imminent,'' or ``very likely.'' McCarthy, ``A Proposed Uniform 
Standard for U.S. Courts in Granting Requests for International 
Judicial Assistance,'' 15 Fordham Int'l Law J. 772 (1991). The 1996 
amendment effectively overruled these decisions by amending subsec. (a) 
to state ``including criminal investigation conducted before formal 
accusation.'' In any event, this Treaty was intentionally written to 
cover criminal investigations that have just begun as well as those 
that are nearly completed; it draws no distinction between cases in 
which charges are already pending, ``imminent,'' ``very likely,'' or 
``very likely very soon.'' Thus, U.S. courts should execute requests 
under the Treaty without examining such factors.
    \3\ One United States court has interpreted Title 28, United States 
Code, Section 1782, as permitting the execution of a request for 
assistance from a foreign country only if the evidence sought is for 
use in proceedings before an adjudicatory ``tribunal'' in the foreign 
country. In Re Letters Rogatory Issued by the Director of Inspection of 
the Gov't of India, 385 F.2d 1017 (2d Cir. 1967); Fonseca v. 
Blumenthal, 620 F.2d 322 (2d Cir. 1980). This interpretation poses an 
unnecessary obstacle to the execution of requests concerning matters 
which are at the investigatory stage, or which are customarily handled 
by administrative officials in the Requesting State. Since this 
paragraph of the Treaty specifically permits requests to be made in 
connection with matters not within the jurisdiction of an adjudicatory 
``tribunal'' in the Requesting State, this paragraph accords the courts 
broader authority to execute requests than does Title 28, United States 
Code, Section 1782, as interpreted in the India and Fonseca cases.
    \4\ See 21 U.S.C. Sec.  881; 18 U.S.C. Sec.  1964.
---------------------------------------------------------------------------
    Paragraph 2 lists the major types of assistance 
specifically considered by the Treaty negotiators. Most of the 
items listed in the paragraph are described in detail in 
subsequent articles. The list is not intended to be exhaustive, 
a fact that is signaled by the word ``include'' in the opening 
clause of the paragraph and reinforced by the final 
subparagraph.
    Paragraph 3 contains a standard provision in United States 
mutual legal assistance treaties \5\ which states that the 
Treaty is intended solely for government-to-government mutual 
legal assistance. The Treaty is not intended to provide to 
private persons a means of evidence gathering, or to extend 
generally to civil matters. Private litigants in the United 
States may continue to obtain evidence from Australia by 
letters rogatory, an avenue of international assistance that 
the Treaty leaves undisturbed. Similarly, the paragraph 
provides that the Treaty is not intended to create any right in 
a private person to suppress or exclude evidence provided 
pursuant to the Treaty, or to impede the execution of a 
request.
---------------------------------------------------------------------------
    \5\ See United States v. Johnpoll, 739 F.2d 702 (2d Cir. 1984), 
cert. denied, 469 U.S. 1075 (1984).
---------------------------------------------------------------------------

                     Article 2--Central Authorities

    This article requires that each Party establish a ``Central 
Authority'' for transmission, receipt, and handling of Treaty 
requests. The Central Authority of the United States would make 
all requests to Australia on behalf of federal agencies, state 
agencies, and local law enforcement authorities in the United 
States. The Australian Central Authority would make all 
requests emanating from officials in Australia.
    The Central Authority for the Requesting State will 
exercise discretion as to the form and content of requests, and 
the number and priority of requests. The Central Authority of 
the Requested State is also responsible for receiving each 
request, transmitting it to the appropriate federal or state 
agency, court, or other authority for execution, and ensuring 
that a timely response is made.
    Paragraph 2 provides that the Attorney General or a person 
designated by the Attorney General will be the Central 
Authority for the United States. The Attorney General has 
delegated the authority to handle the duties of Central 
Authority under mutual assistance treaties to the Assistant 
Attorney General in charge of the Criminal Division. \6\ 
Paragraph 2 also states that for Australia the Central 
Authority shall be the Attorney General of Australia or the 
person designated by Australia's Governor General to be the 
Minister responsible for the administration of the legislation 
relating to mutual legal assistance in criminal matters.
---------------------------------------------------------------------------
    \6\ 28 C.F.R. Sec.  0.64-1. The Assistant Attorney General for the 
Criminal Division has in turn delegated this authority to the Deputy 
Assistant Attorneys General and the Director of the Criminal Division's 
Office of International Affairs, in accordance with the regulation. 
Directive No. 81, 45 Fed. Reg. 79,758 (1980), as corrected at 48 Fed. 
Reg. 54,595 (1983). That delegation was subsequently extended to the 
Deputy Directors of the Office of International Affairs. 59 Fed. Reg. 
42,160 (1994).
---------------------------------------------------------------------------
    Paragraph 3 states that the Central Authorities shall 
communicate directly with one another for the purposes of the 
Treaty. It is anticipated that such communication will be 
accomplished by telephone, telefax, or INTERPOL channels, or 
any other means, at the option of the Central Authorities 
themselves.

                  Article 3--Limitations on Assistance

    Article 3 specifies the limited classes of cases in which 
assistance may be denied under the Treaty.
    Paragraph 1(a) permits the Requested State to deny the 
request if it relates to a political offense, and Article 
3(1)(b) permits denial if the request involves an offense under 
military law which would not be an offense under ordinary 
criminal law. These restrictions are similar to those found in 
other mutual legal assistance treaties. The Central Authorities 
no doubt will employ jurisprudence similar to that used in the 
extradition treaties to determine what are ``political 
offenses.''
    Paragraph 1(c) permits the Central Authority of the 
Requested State to deny a request if execution of the request 
would prejudice the security or essential interests of that 
State. All United States mutual legal assistance treaties 
permit the Requested State to decline to execute a request 
which would prejudice its essential interests.
    The ground for denial of assistance would include cases in 
which assistance might involve disclosure of information that 
is classified for national security reasons. It is anticipated 
that the United States Department of Justice, in its role as 
Central Authority for the United States, would work closely 
with the Department of State and other government agencies to 
determine whether to execute a request that might fall in this 
category.
    In general, the phrase ``essential interests'' was intended 
to narrowly limit the class of cases in which assistance may be 
denied. It would not be enough that the Requesting State's case 
is one that would be inconsistent with public policy had it 
been brought in the Requested State. Rather, the Requested 
State must be convinced that execution of the request would 
seriously conflict with significant public policy. An example 
might be a request involving prosecution by the Requesting 
State of conduct which occurred in the Requested State and is 
constitutionally protected in that State.
    However, it was agreed that ``essential interests'' could 
include interests unrelated to national military or political 
security, and be invoked if the execution of a request would 
violate essential United States interests related to the 
fundamental purposes of the Treaty. For example, one 
fundamental purpose of the Treaty is to enhance law enforcement 
cooperation, and attaining that purpose would be hampered if 
sensitive law enforcement information available under the 
Treaty were to fall into the wrong hands. Therefore, the United 
States Central Authority may invoke paragraph 1(c) to decline 
to provide sensitive or confidential drug related information 
pursuant to a request under this Treaty whenever it determines, 
after appropriate consultation with law enforcement, 
intelligence, and foreign policy agencies, that a senior 
foreign government official who will have access to the 
information is engaged in or facilitates the production or 
distribution of illegal drugs and is using the request to the 
prejudice of a U.S. investigation or prosecution. \7\
---------------------------------------------------------------------------
    \7\ This is consistent with the Senate resolution of advice and 
consent to ratification, e.g., of the mutual legal assistance treaties 
with Mexico, Canada, Belgium, Thailand, the Bahamas, and the United 
Kingdom Concerning the Cayman Islands. Cong. Rec. 13884, (1989) (treaty 
citations omitted). See also Staff of Senate Comm. on Foreign 
Relations, 100th Cong., 2nd Sess., Mutual Legal Assistance Treaty 
Concerning the Cayman Islands 67 (1988) (testimony of Mark M. Richard, 
Deputy Assistant Attorney General, Criminal Division, United States 
Department of Justice).
---------------------------------------------------------------------------
    Section 8 of Australia's Mutual Assistance Law contains 
mandatory and discretionary bases for denying mutual assistance 
requests. \8\ Australia considers these bases for denial to be 
express statutory limitations on its Central Authority's 
ability to execute requests, and firmly believes that Australia 
has an ``essential interest'' in enforcing this aspect of its 
laws. Therefore, it was agreed that Australia may cite Article 
3(2) to deny a request from the United States if that request 
would be subject to denial under Section 8 of Australia's law, 
as that law read on the date that the Treaty was signed. An 
exchange of diplomatic notes accompanying the treaty describes 
the understanding of the Parties on this matter.
---------------------------------------------------------------------------
    \8\ Section 8(1) states that Australia's Attorney General must deny 
an assistance request if, in his opinion: (a) it relates to the 
prosecution or punishment of a person for an offense of a political 
character; (b) there are substantial grounds for believing that the 
request is made to prosecute or punish the person for an offense of a 
political character; (c) there are substantial grounds for believing 
that the request was made for the purpose of prosecuting, punishing, or 
otherwise causing prejudice to a person due to the person's race, sex, 
religion, nationality, or political opinions; (d) the request relates 
to a person for an act or omission that would be an offense under 
military law but not an offense under ordinary criminal law if it had 
occurred in Australia; (e) granting the request would prejudice 
Australia's sovereignty, security, or national interests, or the 
essential interests of an Australian state or territory; (f) the 
request relates to prosecution for an offense for which the person has 
already been acquitted or pardoned in the foreign state, or has 
undergone the punishment for the offense in the foreign state; or (g) 
the foreign state is not a third State to which the Mutual Assistance 
in Criminal Matters Act applies. Section 8(2) of the Act states that 
the Attorney General may deny an assistance request if: (a) it relates 
to conduct which, if it occurred in Australia, would not be an offense; 
(b) it relates to conduct which occurred outside of the requesting 
state, and a similar act or omission occurring outside Australia in 
similar circumstances would not have constituted an Australian offense; 
(c) it relates to conduct which, if it had occurred in Australia, would 
have constituted an offense, but the person responsible could not be 
prosecuted by reason of lapse of time or any other reason; (d) 
providing assistance would prejudice an Australian criminal 
investigation; (e) providing assistance might prejudice the safety of 
any person in or outside of Australia; or (f) providing assistance 
would impose an excessive burden on the resources of Australia, its 
States, or Territories.
---------------------------------------------------------------------------
    The delegations also discussed an Australian proposal to 
limit assistance in death penalty cases. Australia has 
abolished the death penalty, and as a matter of policy it 
declines to provide assistance to other nations if the person 
under investigation might receive the death penalty in that 
other state. The mutual assistance treaties that Australia is 
negotiating with its Asian neighbors contain restrictions on 
assistance in death penalty cases, \9\ and Australia felt that 
similar restrictions should be contained in this Treaty. The 
U.S. delegation was not willing to foreclose cooperation in 
this class of serious cases. Negotiations nearly broke down 
over this issue, but finally it was agreed that if Australian 
law explicitly made the possible imposition of the death 
penalty a basis for denying assistance, Australia could treat 
that legal prohibition as an ``essential interest'' under 
Article 3(1)(c). In September, 1996, Australia's Parliament 
enacted the ``Mutual Assistance in Criminal Matters Legislation 
Amendment Bill 1996,'' amending Section 8 of the Mutual 
Assistance in Criminal Matters Act 1987 to expressly require 
denial of requests in death penalty cases. Australian officials 
assured the U.S. that as a practical matter assistance would be 
provided in most death penalty cases, especially at the pre-
indictment stage. The fact that Australia is required by law to 
limit mutual assistance in capital cases and Australia's 
concessions on the practical implementation of the law 
persuaded the U.S. delegation to accept, reluctantly, this 
undesirable limitation on the scope of Treaty assistance.
---------------------------------------------------------------------------
    \9\ Australia's neighbors sometimes execute Australian citizens for 
possessing small amounts of drugs.
---------------------------------------------------------------------------
    Extradition treaties sometimes condition the surrender of 
fugitives upon a showing of ``dual criminality'', i.e., proof 
that the facts underlying the offense in the Requesting State 
would also constitute an offense had they occurred in the 
Requested State. Most mutual assistance treaties do not require 
dual criminality for cooperation, and many such treaties 
expressly state that assistance may be provided even when the 
facts under investigation in the Requesting State would not be 
a crime in the Requested State. However, Section 8 of 
Australia's mutual legal assistance law permits assistance to 
be denied if dual criminality is lacking, and hence dual 
criminality may be deemed an ``essential interest'' under 
Article 3 of this treaty. During the negotiations, the United 
States delegation received assurances from the Australia 
delegation that assistance would be available under the Treaty 
to U.S. investigations of major crimes such as drug 
trafficking, terrorism, organized crime and racketeering, money 
laundering, tax fraud or tax evasion, and crimes against 
environmental laws.
    Paragraph 2 is similar to Article 3(2) of the U.S.-
Switzerland Mutual Legal Assistance Treaty, \10\ and obliges 
the Requested State to consider imposing appropriate conditions 
on its assistance in lieu of denying a request outright 
pursuant to the first paragraph of the article. For example, a 
Contracting Party might request information that could be used 
either in a routine criminal case (which would be within the 
scope of the Treaty) or in a politically motivated prosecution 
(which would be subject to refusal). This paragraph would 
permit the Requested State to provide the information on the 
condition that it be used only in the routine criminal case. 
Naturally, the Requested State would notify the Requesting 
State of any proposed conditions before actually delivering the 
evidence in question, thereby according the Requesting State an 
opportunity to indicate whether it is willing to accept the 
evidence subject to the conditions. If the Requesting State 
does accept the evidence subject to the conditions, it must 
honor the conditions.
---------------------------------------------------------------------------
    \10\ U.S.-Switzerland Mutual Legal Assistance Treaty, May 25, 1973, 
art. 26, 27 U.S.T. 2019, T.I.A.S. No. 8302, 1052 U.N.T.S. 61.
---------------------------------------------------------------------------
    Paragraph 3 effectively requires that the Central Authority 
of the Requested State promptly notify the Central Authority of 
the Requesting State of the basis for any denial of assistance. 
This ensures that, when a request is only partly executed, the 
Requested State will provide some explanation for not providing 
all of the information or evidence sought. This should avoid 
misunderstandings, and enable the Requesting State to better 
prepare its requests in the future.

                Article 4--Form and Contents of Requests

    Paragraph 1 requires that requests be in writing, except 
that the Central Authority of the Requested State may accept a 
request in another form in ``urgent situations.'' A request in 
another form must be confirmed in writing within ten days 
unless the Central Authority of the Requested State agrees 
otherwise.
    Paragraph 2 lists the four kinds of information deemed 
crucial to the efficient operation of the Treaty which must be 
included in each request. Paragraph 3 outlines kinds of 
information that are important but not always crucial, and 
should be provided ``to the extent necessary and possible.'' In 
keeping with the intention of the Parties that requests be as 
simple and straightforward as possible, there is no requirement 
under the Treaty that a request be legalized or certified in 
any particular manner.

                    Article 5--Execution of Requests

    Paragraph 1 requires each Central Authority promptly to 
execute requests. The negotiators intended that the Central 
Authority, upon receiving a request, will first review the 
request, then promptly notify the Central Authority of the 
Requesting State if the request does not appear to comply with 
the Treaty's terms. If the request does satisfy the Treaty's 
requirements and the assistance sought can be provided by the 
Central Authority itself, the request will be fulfilled 
immediately. If the request meets the Treaty's requirements but 
its execution requires action by some other entity in the 
Requested State, the Central Authority will promptly transmit 
the request to the correct entity for execution.
    When the United States is the Requested State, it is 
anticipated that the Central Authority will transmit most 
requests to federal investigators, prosecutors, or judicial 
officials for execution if the Central Authority deems it 
appropriate to do so.
    Paragraph 1 further authorizes and requires the federal, 
state, or local agency or authority selected by the Central 
Authority to do everything within its power to execute the 
request. This provision is not intended or understood to 
authorize the use of the grand jury in the United States for 
the collection of evidence pursuant to a request from 
Australia. Rather, it is anticipated that when a request from 
Australia requires compulsory process for execution, the United 
States Department of Justice would ask a federal court to issue 
the necessary process under Title 28, United States Code, 
Section 1782, and the provisions of the Treaty. \11\
---------------------------------------------------------------------------
    \11\ This paragraph of the Treaty specifically authorizes United 
States courts to use all of their powers to issue subpoenas and other 
process to satisfy a request under the Treaty.
---------------------------------------------------------------------------
    Paragraph 2 states that the Central Authority of the 
Requested State shall make all necessary arrangements for 
representing the Requesting State in any proceedings in the 
Requested State arising out of the request for assistance. 
Thus, it is understood that if execution of the request entails 
action by a judicial or administrative agency, the Central 
Authority of the Requested State shall arrange for the 
presentation of the request to that court or agency at no cost 
to the Requesting State. Since the cost of retaining counsel 
abroad to present and process letters rogatory is sometimes 
quite high, this provision for reciprocal legal representation 
in Paragraph 2 is a significant advance in international legal 
cooperation. It is also understood that should the Requesting 
State choose to hire private counsel for a particular request, 
it is free to do so at its own expense.
    Paragraph 3 provides that ``[r]equests shall be executed in 
accordance with the laws of the Requested State except to the 
extent that this Treaty provides otherwise.'' Thus, the method 
of executing a request for assistance under the Treaty must be 
in accordance with the Requested State's internal laws absent 
specific contrary procedures in the Treaty itself. Neither 
State is expected to take any action pursuant to a treaty 
request which would be prohibited under its internal laws. For 
the United States, the Treaty is intended to be self-executing; 
no new or additional legislation will be needed to carry out 
the obligations undertaken.
    The same paragraph requires that procedures specified in 
the request shall be followed in the execution of the request 
except to the extent that those procedures cannot lawfully be 
followed in the Requested State. This provision is necessary 
for two reasons.
    First, there may be significant differences between the 
procedures which must be followed by United States and 
Australia authorities in collecting evidence in order to assure 
the admissibility of that evidence at trial. For instance, 
United States law permits documentary evidence taken abroad to 
be admitted in evidence if the evidence is duly certified and 
the defendant has been given fair opportunity to test its 
authenticity. \12\ Australia law currently contains no similar 
provision. Thus, documents assembled in Australia in strict 
conformity with Australian procedures on evidence might not be 
admissible in United States courts. Similarly, United States 
courts utilize procedural techniques such as videotape 
depositions to enhance the reliability of evidence taken 
abroad, and some of these techniques, while not forbidden, are 
not used in Australia.
---------------------------------------------------------------------------
    \12\ Title 18, United States Code, Section 3505.
---------------------------------------------------------------------------
    Second, the evidence in question could be needed for 
subjection to forensic examination, and sometimes the 
procedures which must be followed to enhance the scientific 
accuracy of such tests do not coincide with those utilized in 
assembling evidence for admission into evidence at trial. The 
value of such forensic examinations could be significantly 
lessened--and the Requesting State's investigation could be 
retarded--if the Requested State were to insist unnecessarily 
on handling the evidence in a manner usually reserved for 
evidence to be presented to its own courts.
    The Treaty's primary goal of enhancing law enforcement in 
the Requesting State could be frustrated if the Requested State 
were to insist on producing evidence in a manner which renders 
the evidence inadmissible or less persuasive in the Requesting 
State. For this reason, Paragraph 3 requires the Requested 
State to follow the procedure outlined in the request to the 
extent that it can, even if the procedure is not that usually 
employed in its own proceedings. However, if the procedure 
called for in the request is unlawful in the Requested State 
(as opposed to simply unfamiliar there), the appropriate 
procedure under the law applicable for investigations or 
proceedings in the Requested State will be utilized.
    Paragraph 4 states that a request for assistance need not 
be executed immediately when the Central Authority of the 
Requested State determines that execution would interfere with 
an ongoing investigation or legal proceeding in the Requested 
State. The Central Authority of the Requested State may, in its 
discretion, take such preliminary action as deemed advisable to 
obtain or preserve evidence that might otherwise be lost before 
the conclusion of the investigation or legal proceedings in 
that State. The paragraph also allows the Requested State to 
provide the information sought to the Requesting State subject 
to conditions needed to avoid interference with the Requested 
State's proceedings.
    It is anticipated that some United States requests for 
assistance may contain information which under our law must be 
kept confidential. For example, it may be necessary to set out 
information that is ordinarily protected by Rule 6(e), Federal 
Rules of Criminal Procedure, in the course of an explanation of 
``the subject matter and nature of the investigation, 
prosecution, or proceeding'' as required by Article 4(2)(b). 
Therefore, Paragraph 5 of Article 5 enables the Requesting 
State to call upon the Requested State to keep the information 
in the request confidential. \13\ If the Requested State cannot 
execute the request without disclosing the information in 
question (as might be the case if execution requires a public 
judicial proceeding in the Requested State), or if for some 
other reason this confidentiality cannot be assured, the Treaty 
obliges the Requested State to so indicate, thereby giving the 
Requesting State an opportunity to withdraw the request rather 
than risk jeopardizing an investigation or proceeding by public 
disclosure of the information.
---------------------------------------------------------------------------
    \13\ This provision is similar to language in other United States 
mutual legal assistance treaties. See e.g., U.S.- Mexico Mutual Legal 
Assistance Treaty, Dec. 9, 1987, art. 4(5); U.S.-Canada Mutual Legal 
Assistance Treaty, Mar. 18, 1985; art. 6(5), U.S.-Italy Mutual Legal 
Assistance Treaty, Nov. 9, 1982, art. 8(2); US.-Philippines Mutual 
Legal Assistance Treaty, Nov. 13, 1994, art. 5(5).
---------------------------------------------------------------------------
    Paragraph 6 states that the Central Authority of the 
Requested State shall respond to reasonable inquiries by the 
Requesting State concerning progress of its request. This is to 
encourage open communication between the Central Authorities in 
monitoring the status of specific requests.
    Paragraph 7 requires that the Central Authority of the 
Requested State promptly notify the Central Authority of the 
Requesting State of the outcome of the execution of a request. 
If the assistance sought is not provided, the Central Authority 
of the Requested State must also explain the basis for the 
outcome to the Central Authority of the Requesting State. For 
example, if the evidence sought could not be located, the 
Central Authority of the Requested State would report that fact 
to the Central Authority of the Requesting State.

                            Article 6--Costs

    This article reflects the increasingly accepted 
international rule that each State shall bear the expenses 
incurred within its territory in executing a legal assistance 
treaty request. This is consistent with similar provisions in 
other United States mutual legal assistance treaties. \14\ 
Article 6 states that the Requesting State will pay fees of 
expert witnesses, translation and transcription costs, and 
allowances and expenses related to travel of persons pursuant 
to Articles 10 and 11.
---------------------------------------------------------------------------
    \14\ See, e.g., U.S.-Canada Mutual Legal Assistance Treaty, supra 
note 13, art. 8; U.S.-Philippines Mutual Legal Assistance Treaty, supra 
note 13, art. 6.
---------------------------------------------------------------------------

                     Article 7--Limitations on Use

    Paragraph 1 states that the Central Authority of the 
Requested State may require that information provided under the 
Treaty not be used for any purpose other than that stated in 
the request without the prior consent of the Requested State. 
It will be recalled that Article 4(2)(d) states that the 
Requesting State must specify the purpose for which the 
information or evidence sought under the Treaty is needed.
    It is not anticipated that the Central Authority of the 
Requested State will routinely request use limitations under 
paragraph 1. Rather, it is expected that such limitations will 
be requested sparingly, only when there is good reason to 
restrict the utilization of the evidence.
    Paragraph 2 states that the Requested State may request 
that the information or evidence it provides to the Requesting 
State be kept confidential. Under most United States mutual 
legal assistance treaties, conditions of confidentiality are 
imposed only when necessary, and are tailored to fit the 
circumstances of each particular case. For instance, the 
Requested State may wish to cooperate with the investigation in 
the Requesting State but choose to limit access to information 
which might endanger the safety of an informant, or unduly 
prejudice the interests of persons not connected in any way 
with the matter being investigated in the Requesting State. 
Paragraph 2 requires that if conditions of confidentiality are 
imposed, the Requesting State need only make ``best efforts'' 
to comply with them. This ``best efforts'' language was used 
because the purpose of the Treaty is the production of evidence 
for use at trial, and that purpose would be frustrated if the 
Requested State could routinely permit the Requesting State to 
see valuable evidence, but impose confidentiality restrictions 
which prevent the Requesting State from using it. If assistance 
is provided with a condition under this paragraph, the U.S. 
could deny public disclosure under the Freedom of Information 
Act.
    It was understood that in some cases the Requested State 
may not deem a ``best efforts'' undertaking sufficient to 
protect its interests, and it may require more comprehensive 
assurances or deny the request, if the Treaty contains a basis 
for doing so. For example, currency transaction reports (CTR) 
are confidential in Australia, and were the United States to 
seek access to CTRs in the possession of the Australian 
Government, and Australia felt the ``best efforts`` commitment 
in Article 7(2) were insufficient, it could exercise discretion 
under Article 9(2) to deny the request.
    The Australian delegation indicated that use limitations 
would be imposed only in exceptional cases, or in cases in 
which Australian law enforcement authorities themselves would 
be subject to use and disclosure limitations. The United States 
delegation assured the Australian delegation that the United 
States would not seek information from Australia on a broader 
basis than Australian authorities could obtain that 
information.
    The Australian delegation expressed particular concern that 
information it might supply in response to a request by the 
United States under the Treaty not be subject to disclosure 
under the Freedom of Information Act. It was agreed that this 
clause of the Treaty, as drafted, would mean that a Freedom of 
Information Act request for information provided under the 
Treaty would be denied.
    Paragraph 3 states that once evidence obtained under the 
Treaty has been revealed to the public in accordance with 
paragraphs 1 or 2, the Requesting State is free to use the 
evidence for any purpose. Once evidence obtained under the 
Treaty has been revealed to the public in a trial, that 
information effectively becomes part of the public domain, and 
is likely to become a matter of common knowledge, perhaps even 
be described in the press. The negotiators noted that once this 
has occurred, it is practically impossible for the Central 
Authority of the Requesting Party to block the use of that 
information by third parties.
    It should be noted that under Article 1(4), the 
restrictions outlined in Article 7 are for the benefit of the 
Contracting Parties, and the invocation and enforcement of 
these provisions are left entirely to the Contracting Parties. 
If a person alleges that an Australia authority seeks to use 
information or evidence obtained from the United States in a 
manner inconsistent with this article, the person can inform 
the Central Authority of the United States of the allegations 
for consideration as a matter between the Contracting Parties.

           Article 8--Taking Evidence in the Requested State

    Paragraph 1 states that a person in the Requested State 
from whom evidence is sought shall be compelled, if necessary, 
to appear and testify or produce documents, records, or other 
articles of evidence. The compulsion contemplated by this 
article can be accomplished by subpoena or any other means 
available under the law of the Requested State.
    Paragraph 1, when read together with Article 5(3), ensures 
that no person will be compelled to furnish information if he 
has a right not to do so under the law of the Requested State. 
Thus, a witness questioned in the United States pursuant to a 
request from Australia is guaranteed the right to invoke any of 
the testimonial privileges (e.g., attorney client, 
interspousal) available in the United States as well as the 
constitutional privilege against self-incrimination, to the 
extent that it might apply in the context of evidence being 
taken for foreign proceedings. \15\ A witness testifying in 
Australia may raise any of the similar privileges available 
under Australian law.
---------------------------------------------------------------------------
    \15\ This is consistent with the approach taken in Title 28, United 
States Code, Section 1782.
---------------------------------------------------------------------------
    Paragraph 2 requires that, upon request, the Requested 
State shall furnish information in advance about the date and 
place of the taking of testimony or evidence.
    Paragraph 3 provides that any persons specified in the 
request, including the defendant and his counsel in criminal 
cases, shall be permitted by the Requested State to be present 
and pose questions, either directly or through a local legal 
representative, during the taking of testimony under this 
article. Paragraph 4 requires that if a witness attempts to 
assert a privilege that is unique to the Requesting State, the 
Requested State will take the desired evidence and turn it over 
to the Requesting State along with notice that it was obtained 
over a claim of privilege. The applicability of the privilege 
can then be determined in the Requesting State, where the scope 
of the privilege and the legislative and policy reasons 
underlying the privilege are best understood. A similar 
provision appears in many of our recent mutual legal assistance 
treaties. \16\ Paragraph 5 states that documents, records, and 
articles of evidence produced pursuant to this article may be 
authenticated by an attestation, including, in the case of 
business records, authentication in the manner indicated in 
Form A appended to the Treaty. Thus, the provision establishes 
a procedure for authenticating business records in a manner 
similar to Title 18, United States Code, Section 3505. \17\ It 
is understood that this paragraph provides for the 
admissibility of authenticated documents as evidence without 
additional foundation or authentication. With respect to the 
United States, this paragraph is self-executing, and does not 
need implementing legislation.
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    \16\ See e.g., U.S.-Netherlands Mutual Legal Assistance Treaty, 
June 12, 1981, art. 5(1), T.I.A.S. No. 10734, 1359 U.N.T.S. 209; U.S.-
Bahamas Mutual Legal Assistance Treaty, June 12 & Aug. 18, 1987, art. 
9(2); U.S.-Mexico Mutual Legal Assistance Treaty, Supra note 13, art. 
7(2); U.S.-Philippines Mutual Legal Assistance Treaty, supra note 13, 
art. 8(4).
    \17\ Title 18, U.S. Code, Section 3505(c)(2), requires that an 
attestation of foreign business records be sworn to or affirmed on 
penalty of criminal punishment for false statement or false attestation 
in the foreign state. Australia assured the U.S. that the making of a 
false statement on Form A before an Australian judicial authority would 
be punishable as a criminal offense in the Australian state or 
territory where made. See, e.g., Secs. 327 and 330, Crimes Act 1900 
(Australian Capital Territory); Secs. 317, 327, and 330, Crimes Act 
1900 (New South Wales); Secs. 96, 97, 99, and 119, Criminal Code 
(Northern Territory); Secs. 123, 124, 193, and 194, Criminal Code 
(Queensland).
---------------------------------------------------------------------------
    Paragraph 5 provides that the evidence authenticated by 
Form A is ``admissible,'' but of course, it will be up to the 
judicial authority presiding over the trial to determine 
whether the evidence should in fact be admitted. The 
negotiators intended that evidentiary tests other than 
authentication (such as relevance or materiality) would still 
have to be satisfied in each case.
    Paragraph 6 states that evidence may also be authenticated 
by any other form or manner prescribed by either Central 
Authority. It is anticipated that this provision will be of 
particular value in Australian requests, and United States 
requests for evidence to which Title 18, United States Code, 
Section 3505 is inapplicable. In such cases, the Central 
Authority will state the manner of authentication for the 
evidence sought.

               Article 9--Records of Government Agencies

    Paragraph 1 obliges each Party to furnish the other with 
copies of publicly available documents, records, or information 
in the possession of government departments and agencies in the 
Requested State. The term ``government departments and 
agencies'' includes all executive, judicial, and legislative 
units of the Federal, State, and local level in each country.
    Paragraph 2 provides that the Requested State may share 
with its treaty partner copies of nonpublic information in 
government files. The obligation under this provision is 
discretionary, and such requests may be denied in whole or in 
part. Moreover, the article states that the Requested State may 
only exercise its discretion to turn over information in its 
files ``to the same extent and under the same conditions'' as 
it would to its own law enforcement or judicial authorities. It 
is intended that the Central Authority of the Requested State, 
in close consultation with the interested law enforcement 
authorities of that State, will determine that extent and what 
those conditions would be.
    The discretionary nature of this provision was deemed 
necessary because government files in each State contain some 
kinds of information that would be available to investigative 
authorities in that State, but that justifiably would be deemed 
inappropriate to release to a foreign government. For example, 
assistance might be deemed inappropriate where the information 
requested would identify or endanger an informant, prejudice 
sources of information needed in future investigations, or 
reveal information that was given to the Requested State in 
return for a promise that it not be divulged. Of course, a 
request could be denied under this clause if the Requested 
State's law bars disclosure of the information.
    The delegations discussed whether this article should serve 
as a basis for exchange of information in tax matters. It was 
the intention of the United States delegation that the United 
States be able to provide assistance under the Treaty for tax 
offenses, as well as to provide information in the custody of 
the Internal Revenue Service for both tax offenses and non-tax 
offenses under circumstances that such information is available 
to U.S. law enforcement authorities. The United States 
delegation was satisfied after discussion that this Treaty is a 
``convention relating to the exchange of tax information'' for 
purposes of Title 26, United States Code, Section 6103(k)(4), 
and the United States would have the discretion to provide tax 
return information to Australia under this article in 
appropriate cases. \18\
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    \18\ Thus, this treaty, like all of the other U.S. bilateral mutual 
legal assistance treaties, authorizes the Contracting Parties to 
provide tax return information in appropriate circumstances.
---------------------------------------------------------------------------
    Paragraph 3 states that documents provided under this 
article may be authenticated by the official in charge of 
maintaining them through the use of Form B appended to the 
Treaty, and if authenticated in this manner, the evidence shall 
be admissible in evidence in the courts of the United States. 
Thus, the Treaty establishes a procedure for authenticating 
official foreign documents that is consistent with Rule 902(3) 
of the Federal Rules of Evidence and Rule 44 of the Federal 
Rules of Civil Procedure.
    Paragraph 3, similar to Article 8(5), states that documents 
authenticated under this paragraph shall be ``admissible,'' but 
it will, of course, be up to the judicial authority presiding 
over the trial to determine whether the evidence should in fact 
be admitted. The evidentiary tests other than authentication 
(such as relevance or materiality) must be established in each 
case.
    Paragraph 4 states that documents provided under this 
article may also be authenticated by any other form or manner 
prescribed by either Central Authority. In such cases, the 
Central Authority will state the manner of authentication for 
the evidence sought.

             Article 10--Assistance in the Requesting State

    This article provides that upon request, the Requested 
State shall request the consent of persons who are located in 
its territory to travel to the Requesting State to appear as a 
witness in the Requesting State or assist in investigations, 
prosecutions, or proceedings in the Requesting State. It shall 
notify the Requesting State of such person's response. An 
appearance in the Requesting State under this article is not 
mandatory, and the invitation may be refused by the prospective 
witness. The Requesting State would be expected to pay the 
expenses of such an appearance pursuant to Article 6 if 
requested by the person whose appearance is sought.
    The article further provides that the person shall be 
informed of the amount and kind of expenses which the 
Requesting State will provide in a particular case. It is 
assumed that such expenses would normally include the costs of 
transportation, and room and board. When the person is to 
appear in the United States, a nominal witness fee would also 
be provided.

               Article 11--Transfer of Persons in Custody

    In some criminal cases, a need arises for the testimony in 
one country of a witness in custody in another country. In some 
instances, foreign countries are willing and able to ``lend'' 
witnesses to the United States Government, provided the 
witnesses would be carefully guarded while in the United States 
and returned to the foreign country at the conclusion of the 
testimony. On occasion, the United States Justice Department 
has arranged for consenting federal inmates in the United 
States to be transported to foreign countries to assist in 
criminal proceedings. \19\
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    \19\ For example, in September, 1986, the United States Justice 
Department and the United States Drug Enforcement Administration 
arranged for four federal prisoners to be transported to the United 
Kingdom to testify for the Crown in Regina v. Dye, Williamson, Ells, 
Davies, Murphy, and Millard, a major narcotics prosecution in ``the Old 
Bailey'' (Central Criminal Court) in London.
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    Paragraph 1 provides an express legal basis for cooperation 
in these matters. It is based on Article 26 of the United 
States-Switzerland Mutual Legal Assistance Treaty, \20\ which 
in turn is based on Article 11 of the European Convention on 
Mutual Assistance in Criminal Matters. \21\
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    \20\ U.S.-Switzerland Mutual Legal Assistance Treaty, supra note 
10, art. 26.
    \21\ See also Title 18, United States Code, Section 3508, which 
provides for the transfer to the United States of witnesses in custody 
in other States whose testimony is needed at a federal criminal trial.
---------------------------------------------------------------------------
    Paragraph 2 provides that a person in the custody of the 
Requesting State whose presence in the Requested State is 
needed for purposes of assistance under this Treaty may be 
transferred to the Requested State if the person consents and 
if the Central Authorities of both States agree. This would 
also cover situations in which a person in custody in the 
United States on a criminal matter has sought permission to 
travel to another country to be present at a deposition being 
taken there in connection with the case. \22\
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    \22\ See also United States v. King, 552 F.2d 833 (9th Cir. 1976), 
cert. denied, 430 U.S. 966 (1977), where the defendants insisted on 
traveling to Japan to be present at the deposition of certain witnesses 
in prison there.
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    Paragraph 3 provides express authority for the receiving 
State to maintain such a person in custody throughout the 
person's stay there. This paragraph also authorizes the 
receiving State to return the person in custody to the sending 
State, and provides that this return will occur in accordance 
with terms and conditions agreed upon by the Central 
Authorities. The initial transfer of a prisoner under this 
article requires the consent of the person involved and of both 
Central Authorities, but the provision does not require that 
the person consent to be returned to the sending State.
    Once the receiving State has agreed to assist the sending 
State's investigation or proceeding pursuant to this article, 
it would be inappropriate for the receiving State to hold the 
person transferred and require extradition proceedings before 
allowing him to return to the sending State as agreed. 
Therefore, Paragraph 3(c) contemplates that extradition 
proceedings will not be required before the status quo is 
restored by the return of the person transferred. Paragraph 
3(d) states that the person is to receive credit for time 
served while in the custody of the receiving State. This is 
consistent with United States practice in these matters.
    Paragraph 3(e) requires that if the sending State advises 
the receiving State that the person sought is no longer 
required to be held in custody, the person transferred shall be 
released from custody and be treated as a person who appeared 
voluntarily in the Requesting State pursuant to Article 10.

                        Article 12--Safe Conduct

    Paragraph 1 provides that a person who is in the Requesting 
State pursuant to Articles 10 or 11 shall not be served with 
process, or be detained or subjected to any restriction of 
personal liberty by reason of acts or convictions which 
preceded the witness' departure from the Requested State. It is 
understood that this provision does not prevent the prosecution 
of a person for perjury or any other crime committed while in 
the Requesting State.
    Article 12(2) states that the safe conduct guaranteed in 
this article expires twenty five days after the Central 
Authority of the Requesting State has notified the Central 
Authority of the Requested State that the person's presence is 
no longer required, or if he leaves the territory of the 
Requesting State and thereafter voluntarily returns to it. This 
safe conduct period is longer than that prescribed in other 
mutual legal assistance treaties because of the significant 
distance between the United States and Australia and the 
difficulties of travel arrangements.

           Article 13--Location or Identification of Persons

    This article provides for ascertaining the whereabouts in 
the Requested State of persons (such as witnesses, potential 
defendants, or experts) if the Requesting State seeks such 
information. This is a standard provision contained in all 
United States mutual legal assistance treaties. The Treaty 
requires only that the Requested State make ``best efforts'' to 
locate the persons sought by the Requesting State. The extent 
of such efforts will vary, of course, depending on the quality 
and extent of the information provided by the Requesting State 
concerning the suspected location and last known location.
    The obligation to locate persons is limited to persons that 
are or may be in the territory of the Requested State. Thus, 
the United States would not be obliged to attempt to locate 
persons which may be in third countries. In all cases, the 
Requesting State would be expected to supply all available 
information about the last known location of the persons 
sought.

                    Article 14--Service of Documents

    This article creates an obligation on the Requested State 
to use its best efforts to effect the service of documents such 
as summons, complaints, subpoenas, or other legal papers at the 
request of the Requesting State. Similar provisions appear in 
several U.S. mutual legal assistance treaties.
    It is expected that when the United States is the Requested 
State, service under the Treaty will be made by registered mail 
(in the absence of any request by Australia to follow a 
specified procedure for service) or by the United States 
Marshal's Service in instances in which personal service is 
requested.
    Paragraph 2 provides that when the documents to be served 
call for the appearance of a person in the Requesting State, 
the documents should be received by the Central Authority of 
the Requested State a reasonable time before the date set for 
any such appearance.
    Paragraph 3 requires that proof of service be returned to 
the Requesting State in the manner specified in the request.

                     Article 15--Search and Seizure

    It is sometimes in the interests of justice for one State 
to ask another to search for, secure, and deliver articles or 
objects needed in the former as evidence or for other purposes. 
United States courts can and do execute such requests under 
Title 28, United States Code, Section 1782. \23\ This article 
creates a formal framework for handling such requests.
---------------------------------------------------------------------------
    \23\ See e.g., United States ex Rel. Public Prosecutor of 
Rotterdam, Netherlands v. Van Aalst, Case No 84-52-M-01 (M.D. Fla., 
Orlando Div.) (Search warrant issued February 24, 1984).
---------------------------------------------------------------------------
    Article 15 requires that the search and seizure request 
include ``information justifying such action under the laws of 
the Requested State.'' This means that normally a request to 
the United States from Australia will have to be supported by a 
showing of probable cause for the search. A United States 
request to Australia would have to satisfy the corresponding 
evidentiary standard there.
    Paragraph 2 is designed to ensure that a record is kept of 
articles seized and of articles delivered up under the Treaty. 
This provision effectively requires that, upon request, every 
official who has custody of a seized article shall certify, 
through the use of Form C appended to this Treaty, the 
continuity of custody, the identity of the item, and the 
integrity of its condition.
    The article also provides that the certificates describing 
continuity of custody will be admissible without additional 
authentication at trial in the United States, thus relieving 
the Requesting State of the burden, expense, and inconvenience 
of having to send its law enforcement officers to the Requested 
State to provided authentication and chain of custody testimony 
each time the Requesting State uses evidence produced under 
this article. As in Articles 8(5) and 9(3), the injunction that 
the certificates be admissible without additional 
authentication leaves the trier of fact free to bar use of the 
evidence itself, in spite of the certificate, if there is some 
reason to do so other than authenticity or chain of custody.
    Paragraph 3 states that the Requested State may require 
that the Requesting State agree to terms and conditions 
necessary to protect the interests of third parties in the 
article to be transferred. This article is similar to 
provisions in many other United States mutual legal assistance 
treaties. \24\
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    \24\ See e.g., U.S.-Argentina Mutual Legal Assistance Treaty, Dec. 
4, 1990; U.S.-Bahamas Mutual Legal Assistance Treaty, supra note 17; 
U.S.-Canada Mutual Legal Assistance Treaty, supra note 13; U.S.-U.K. 
Mutual Legal Assistance Treaty Concerning the Cayman Islands, Jul. 3, 
1986; U.S.-Hungary Mutual Legal Assistance Treaty, Dec. 1, 1994; U.S.-
Korea Mutual Legal Assistance Treaty, Nov. 23, 1993; U.S.-Panama Mutual 
Legal Assistance Treaty, Apr. 11, 1991; U.S.-Philippines Mutual Legal 
Assistance Treaty, supra note 14; U.S.-Spain Mutual Legal Assistance 
Treaty, Nov. 20, 1990; U.S.-United Kingdom Mutual Legal Assistance 
Treaty, Jul. 3, 1986.
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                     Article 16--Return of Evidence

    This article provides that any item provided under the 
Treaty must be returned to the Requested State when no longer 
needed for the relevant investigation, prosecution, or 
proceeding. This would normally be invoked only if the Central 
Authority of the Requested States requests it, normally at the 
time the item is provided to the Requesting State. It is 
anticipated that unless original records, or items of 
significant intrinsic value are involved, the Requested State 
will not usually request return of the items, but this is a 
matter best left to development in practice.

            Article 17--Assistance in Forfeiture Proceedings

    A major goal of the Treaty is to enhance the efforts of 
both the United States and Australia in combating narcotics 
trafficking. One significant strategy in this effort is action 
by United States authorities to seize and confiscate money, 
property, and other proceeds of drug trafficking.
    Paragraph 1 provides that upon request, each Central 
Authority shall endeavor to locate, trace, restrain, freeze, 
seize, forfeit, or confiscate the proceeds and 
instrumentalities of crime, to the extent it is permitted to do 
so by its law. The term ``proceeds or instrumentalities'' was 
intended to include things such as money, vessels, or other 
valuables either used in the crime or purchased or obtained as 
a result of the crime.
    Pursuant to Paragraph 1, the Central Authority of the State 
in which the proceeds or instrumentalities are located may take 
whatever action is appropriate under its law. For instance, if 
the assets in question are located in the United States and 
were obtained as a result of a fraud in Australia, they could 
be seized under Title 18, United States Code, Section 981, in 
aid of a prosecution under Title 18, United States Code, 
Section 2314, \25\ or be subject to a temporary restraining 
order in anticipation of a civil action for the return of the 
assets to the lawful owner. Proceeds of a foreign kidnapping, 
robbery, extortion or a fraud by or against a foreign bank are 
civilly and criminally forfeitable in the United States since 
these offenses are predicate offenses under U.S. money 
laundering laws. \26\ Thus, it is a violation of United States 
criminal law to launder the proceeds of these foreign fraud or 
theft offenses, when such proceeds are brought into the United 
States.
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    \25\ This statute makes it an offense to transport money or 
valuables in interstate or foreign commerce knowing that they were 
obtained by fraud in the United States or abroad.
    \26\ Title 18, United States Code, Section 1956(c)(7)(B).
---------------------------------------------------------------------------
    If the assets are the proceeds of drug trafficking, it is 
especially likely that the Contracting Parties will be able and 
willing to help one another. Title 18, United States Code, 
Section 981(a)(1)(B) allows for the forfeiture to the United 
States of property ``which represents the proceeds of an 
offense against a foreign nation involving the manufacture, 
importation, sale, or distribution of a controlled substance 
(as such term is defined for the purposes of the Controlled 
Substance Act) within whose jurisdiction such offense or 
activity would be punishable by death or imprisonment for a 
term exceeding one year if such act or activity had occurred 
within the jurisdiction of the United States.'' This is 
consistent with the laws in other countries, such as 
Switzerland and Canada; there is a growing trend among nations 
toward enacting legislation of this kind in the battle against 
narcotics trafficking. \27\ The United States delegation 
expects that Article 17 of the Treaty will enable this 
legislation to be even more effective.
---------------------------------------------------------------------------
    \27\ Article 5 of the United Nations Convention Against Illicit 
Traffic in Narcotic Drugs and Psychotropic Substances, calls for the 
States that are party to enact legislation to forfeit illicit drug 
proceeds and to assist one another in such matters. United Nations 
Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic 
Substances, with annex and final act, done at Vienna, Dec. 20, 1988.
---------------------------------------------------------------------------
    United States law permits the government to transfer a 
share of certain forfeited property to other countries that 
participate directly or indirectly in the seizure or forfeiture 
of the property. Under regulations promulgated by the Attorney 
General, the amount transferred generally reflects the 
contribution of the foreign government in law enforcement 
activity which led to the seizure and forfeiture of the 
property. The law requires that the transfer be authorized by 
an international agreement between the United States and the 
foreign country, and be approved by the Secretary of State. 
\28\ Paragraph 2 is consistent with this framework, and will 
enable a Contracting Party having control of forfeited or 
confiscated proceeds or instrumentalities to transfer such 
property or the proceeds of its sale to the other Party at the 
former's discretion and to the extent permitted by its laws.
---------------------------------------------------------------------------
    \28\ See Title 18, United States Code, Section 981 (i)(1).
---------------------------------------------------------------------------
    Paragraph 3 satisfies a requirement of Australian law by 
providing that where the Requesting State seeks the enforcement 
of a court order restraining, forfeiting, confiscating, or 
otherwise immobilizing proceeds of crime located in the 
Requested State, the request shall be accompanied by the 
original signed order, or a copy thereof, and in either case 
should bear the seal of the Central Authority of the Requesting 
State.

           Article 18--Compatibility with Other Arrangements

    This article states that assistance and procedures provided 
by this Treaty shall not prevent assistance under any other 
applicable international treaties or arrangements. Article 18 
also provides that the Treaty shall not prevent recourse to any 
assistance available under the internal laws of either country. 
Thus, the Treaty would leave the provisions of United States 
and Australian law on letters rogatory completely undisturbed, 
and would not alter any pre-existing agreements concerning 
investigative assistance. \29\
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    \29\ See e.g., the U.S.-Australia Agreement on the Procedures for 
Mutual Assistance in Administration of Justice in connection with the 
Lockheed Aircraft Corporation Matter, signed at Washington September 
13, 1976, 27 U.S.T. 3424, T.I.A.S. 8372.
---------------------------------------------------------------------------

                        Article 19--Consultation

    Experience has shown that as the parties to a treaty of 
this kind work together over the years, they become aware of 
various practical ways to make the treaty more effective and 
their own efforts more efficient. This article anticipates that 
the Contracting Parties will share those ideas with one 
another. Practical measures of this kind might include methods 
of keeping each other informed of the progress of 
investigations and cases in which treaty assistance was 
utilized, or the use of the Treaty to obtain evidence that 
otherwise might be sought via methods less acceptable to the 
Requested State. Very similar provisions are contained in 
recent United States mutual legal assistance treaties. \30\ It 
is anticipated that the Central Authorities will conduct annual 
consultations pursuant to this article.
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    \30\ See, e.g., U.S.-Philippines Mutual Legal Assistance Treaty, 
supra note 14, art. 18; U.S.-Canada Mutual Legal Assistance Treaty, 
supra note 14, art. XVIII; U.S.-U.K. Mutual Legal Assistance Treaty 
Concerning the Cayman Islands, supra note 24, art. 18; U.S.-Argentina 
Mutual Legal Assistance Treaty, supra note 24, art. 18.
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              Article 20--Entry Into Force and Termination

    Paragraph 1 contains the procedure for the entry into force 
of the Treaty. Since Australia approval process for treaties of 
this kind is different from that in the United States, and the 
approval of Parliament is not necessary, there will not be 
instruments of ratification. Instead, the Treaty will enter 
into force when the Contracting Parties exchange written 
notification that they have complied with their respective 
requirements for entry into force.
    Paragraph 2 provides that the Treaty shall apply to any 
request presented pursuant to it, even if the relevant acts or 
omissions occurred before the date on which the Treaty entered 
into force. Provisions of this kind are common in law 
enforcement agreements.
    Paragraph 3 contains standard provisions concerning the 
procedure for terminating the Treaty. Termination shall take 
effect six months after the date of written notification. 
Similar termination provisions are included in other United 
States mutual legal assistance treaties.

 Technical Analysis of the Treaty Between the United States of America 
      and Barbados on Mutual Legal Assistance in Criminal Matters

    On February 28, 1996, the United States signed a treaty 
with Barbados on Mutual Legal Assistance in Criminal Matters 
(``the Treaty''). In recent years, the United States has signed 
similar treaties with a number of countries as part of a highly 
successful effort to modernize the legal tools available to law 
enforcement authorities in need of foreign evidence for use in 
criminal cases.
    The Treaty is expected to be a valuable weapon for the 
United States in its efforts to combat organized crime, 
transnational terrorism, and international drug trafficking in 
the eastern Caribbean, where Barbados is a regional leader.
    It is anticipated that the Treaty will be implemented in 
the United States pursuant to the procedural framework provided 
by Title 28, United States Code, Section 1782. Barbados has its 
own mutual legal assistance laws in place for implementing the 
Treaty, and does not anticipate enacting new legislation. \1\
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    \1\ ``An Act to make provision with respect to the scheme relating 
to Mutual Assistance in Criminal Matters within the Commonwealth and to 
facilitate its operation in Barbados, and to make provision concerning 
mutual assistance in criminal matters between Barbados and countries 
other than Commonwealth countries'' (2nd April 1992), hereinafter 
``Barbados Mutual Assistance in Criminal Matters Act, 1992.''
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    The following technical analysis of the Treaty was prepared 
by the Office of International Affairs, United States 
Department of Justice, and the Office of the Legal Adviser, 
United States Department of State, based upon the negotiating 
notes. The technical analysis includes a discussion of U.S. law 
and relevant practice as of the date of its preparation, which 
are, of course, subject to change. Foreign law discussions 
reflect the current state of that law, to the best of the 
drafters' knowledge.

                     Article 1--Scope of Assistance

    Paragraph 1 requires the Parties to provide mutual 
assistance in connection with the investigation, prosecution, 
and prevention of offenses, and in proceedings relating to 
criminal matters.
    The negotiators specifically agreed that the term 
``investigations'' includes grand jury proceedings in the 
United States and similar pre-charge proceedings in Barbados, 
and other legal measures taken prior to the filing of formal 
charges in either State. \2\ The term ``proceedings'' was 
intended to cover the full range of proceedings in a criminal 
case, including such matters as bail and sentencing hearings. 
\3\ It was also agreed that since the phrase ``proceedings 
related to criminal matters'' is broader than the 
investigation, prosecution or sentencing process itself, 
proceedings covered by the Treaty need not be strictly criminal 
in nature. For example, proceedings to forfeit to the 
government the proceeds of illegal drug trafficking may be 
civil in nature; \4\ yet such proceedings are covered by the 
Treaty.
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    \2\ The requirement that assistance be provided under the Treaty at 
the pre-indictment stage is critical to the U.S., as our investigators 
and prosecutors often need to obtain evidence from foreign countries in 
order to determine whether or not to file criminal charges. This 
obligation is a reciprocal one; the U.S. must assist Barbados under the 
Treaty in connection with investigations prior to charges being filed 
in Barbados. Prior to the 1996 amendments to Title 28, United States 
Code, Section 1782, some U.S. courts had interpreted that provision to 
require that assistance be provided in criminal matters only if formal 
charges have already been filed abroad, or are ``imminent,'' or ``very 
likely.'' McCarthy, ``A Proposed Uniform Standard for U.S. Courts in 
Granting Requests for International Judicial Assistance,'' 15 Fordham 
Int'l Law J. 772 (1991). The 1996 amendment eliminates this problem, 
however, by amending subsec. (a) to state ``including criminal 
investigation conducted before formal accusation.'' In any event, this 
Treaty was intentionally written to cover criminal investigations that 
have just begun as well as those that are nearly completed; it draws no 
distinction between cases in which charges are already pending, 
``imminent,'' ``very likely,'' or ``very likely very soon.'' Thus, U.S. 
courts should execute requests under the Treaty without examining such 
factors.
    \3\ One United States court has interpreted Title 28, United States 
Code, Section 1782, as permitting the execution of a request for 
assistance from a foreign country only if the evidence sought is for 
use in proceedings before an adjudicatory ``tribunal'' in the foreign 
country. In Re Letters Rogatory Issued by the Director of Inspection of 
the Gov't of India, 385 F.2d 1017 (2d Cir. 1967); Fonseca v. 
Blumenthal, 620 F.2d 322 (2d Cir. 1980). This rule poses an unnecessary 
obstacle to the execution of requests concerning matters which are at 
the investigatory stage, or which are customarily handled by 
administrative officials in the Requesting State. Since this paragraph 
of the Treaty specifically permits requests to be made in connection 
with matters not within the jurisdiction of an adjudicatory 
``tribunal'' in the Requesting State, this paragraph accords the courts 
broader authority to execute requests than does Title 28, United States 
Code, Section 1782, as interpreted in the India and Fonseca cases.
    \4\ See 21 U.S.C. Sec.  881; 18 U.S.C. Sec.  1964.
---------------------------------------------------------------------------
    Paragraph 2 lists the major types of assistance 
specifically considered by the Treaty negotiators. Most of the 
items listed in the paragraph are described in detail in 
subsequent articles. The list is not intended to be exhaustive, 
a fact that is signaled by the word ``include'' in the opening 
clause of the paragraph and reinforced by the final 
subparagraph.
    Many law enforcement treaties, especially in the area of 
extradition, condition cooperation upon a showing of ``dual 
criminality'', i.e., proof that the facts underlying the 
offense charged in the Requesting State would also constitute 
an offense had they occurred in the Requested State. Paragraph 
3 of this article, however, makes it clear that there is no 
general requirement of dual criminality under this Treaty for 
cooperation. Thus, assistance may be provided even when the 
criminal matter under investigation in the Requesting State 
would not be a crime in the Requested State ``[e]xcept as 
otherwise provided in this Treaty,'' a phrase which refers to 
Article 3(1)(e), under which the Requested State may, in its 
discretion, require dual criminality for a request under 
Article 14 (involving searches and seizures) or Article 16 
(involving asset forfeiture matters). Article 1(3) is important 
because United States and Barbados criminal law differ 
significantly, and a general dual criminality rule would make 
assistance unavailable in many significant areas. This type of 
limited dual criminality provision is found in other U.S. 
mutual legal assistance treaties. \5\ During the negotiations, 
the United States delegation received assurances from the 
Barbados delegation that assistance would be available under 
the Treaty to the United States investigations of key crimes 
such as drug trafficking, fraud, money laundering, tax 
offenses, antitrust offenses, and environmental protection 
matters.
---------------------------------------------------------------------------
    \5\ See e.g., U.S.-Argentina Treaty on Mutual Legal Assistance in 
Criminal Matters, Dec. 4, 1990, art. 1(3); U.S.-Philippines Treaty on 
Mutual Legal Assistance in Criminal Matters, Nov. 13, 1994, art. 1(3).
---------------------------------------------------------------------------
    Paragraph 4 contains a standard provision in United States 
mutual legal assistance treaties \6\ which states that the 
Treaty is intended solely for government-to-government mutual 
legal assistance. The Treaty is not intended to provide to 
private persons a means of evidence gathering, or to extend 
generally to civil matters. Private litigants in the United 
States may continue to obtain evidence from Barbados by letters 
rogatory, an avenue of international assistance that the Treaty 
leaves undisturbed. Similarly, the paragraph provides that the 
Treaty is not intended to create any right in a private person 
to suppress or exclude evidence provided pursuant to the 
Treaty, or to impede the execution of a request.
---------------------------------------------------------------------------
    \6\ See United States v. Johnpoll, 739 F.2d 702 (2d Cir. 1984), 
cert. denied, 469 U.S. 1075 (1984).
---------------------------------------------------------------------------

                     Article 2--Central Authorities

    This article requires that each Party establish a ``Central 
Authority'' for transmission, receipt, and handling of Treaty 
requests. The Central Authority of the United States would make 
all requests to Barbados on behalf of federal agencies, state 
agencies, and local law enforcement authorities in the United 
States. The Barbadian Central Authority would make all requests 
emanating from officials in Barbados.
    The Central Authority for the Requesting State will 
exercise discretion as to the form and content of requests, and 
the number and priority of requests. The Central Authority of 
the Requested State is also responsible for receiving each 
request, transmitting it to the appropriate federal or state 
agency, court, or other authority for execution, and ensuring 
that a timely response is made.
    Paragraph 2 provides that the Attorney General or a person 
designated by the Attorney General will be the Central 
Authority for the United States. The Attorney General has 
delegated the authority to handle the duties of Central 
Authority under mutual assistance treaties to the Assistant 
Attorney General in charge of the Criminal Division. \7\ 
Paragraph 2 also states that the Attorney General of Barbados 
or a person designated by the Attorney General will serve as 
the Central Authority for Barbados.
---------------------------------------------------------------------------
    \7\ 28 C.F.R. Sec.  0.64-1. The Assistant Attorney General for the 
Criminal Division has in turn delegated this authority to the Deputy 
Assistant Attorneys General and the Director of the Criminal Division's 
Office of International Affairs, in accordance with the regulation. 
Directive No. 81, 45 Fed. Reg. 79,758 (1980), as corrected at 48 Fed. 
Reg. 54,595 (1983). That delegation was subsequently extended to the 
Deputy Directors of the Office of International Affairs. 59 Fed. Reg. 
42,160 (1994).
---------------------------------------------------------------------------
    Paragraph 3 states that the Central Authorities shall 
communicate directly with one another for the purposes of the 
Treaty. It is anticipated that such communication will be 
accomplished by telephone, telefax, or INTERPOL channels, or 
any other means, at the option of the Central Authorities 
themselves.

                  Article 3--Limitations on Assistance

    This article specifies the limited classes of cases in 
which assistance may be denied under the Treaty.
    Paragraph (1)(a) permits the Requested State to deny a 
request if it relates to an offense under military law that 
would not be an offense under ordinary criminal law. Similar 
provisions appear in many other U.S. mutual legal assistance 
treaties.
    Paragraph (1)(b) permits the Central Authority of the 
Requested State to deny a request if execution of the request 
would prejudice the security or other essential public 
interests of that State. All United States mutual legal 
assistance treaties contain provisions allowing the Requested 
State to decline to execute a request if execution would 
prejudice its essential interests.
    The delegations agreed that the word ``security'' would 
include cases in which assistance might involve disclosure of 
information that is classified for national security reasons. 
It is anticipated that the United States Department of Justice, 
in its role as Central Authority for the United States, would 
work closely with the Department of State and other government 
agencies to determine whether to execute a request that might 
fall in this category.
    The delegations also agreed that the phrase ``essential 
public interests'' was intended to narrowly limit the class of 
cases in which assistance may be denied. It would not be enough 
that the Requesting State's case is one that would be 
inconsistent with public policy had it been brought in the 
Requested State. Rather, the Requested State must be convinced 
that execution of the request would seriously conflict with 
significant public policy. An example might be a request 
involving prosecution by the Requesting State of conduct which 
occurred in the Requested State and is constitutionally 
protected in that State.
    However, it was agreed that ``essential public interests'' 
could include interests unrelated to national military or 
political security, and be invoked if the execution of a 
request would violate essential United States interests related 
to the fundamental purposes of the Treaty. For example, one 
fundamental purpose of the Treaty is to enhance law enforcement 
cooperation, and attaining that purpose would be hampered if 
sensitive law enforcement information available under the 
Treaty were to fall into the wrong hands. Therefore, the United 
States Central Authority may invoke paragraph 1(b) to decline 
to provide sensitive or confidential drug related information 
pursuant to a request under this Treaty whenever it determines, 
after appropriate consultation with law enforcement, 
intelligence, and foreign policy agencies, that a senior 
foreign government official who will have access to the 
information is engaged in or facilitates the production or 
distribution of illegal drugs and is using the request to the 
prejudice of a U.S. investigation or prosecution. \8\
---------------------------------------------------------------------------
    \8\ This is consistent with the Senate resolution of advice and 
consent to ratification, e.g., of the mutual legal assistance treaties 
with Mexico, Canada, Belgium, Thailand, the Bahamas, and the United 
Kingdom Concerning the Cayman Islands. Cong. Rec. 13884, (1989) (treaty 
citations omitted). See also Staff of Senate Comm. on Foreign 
Relations, 100th Cong., 2nd Sess., Mutual Legal Assistance Treaty 
Concerning the Cayman Islands 67 (1988) (testimony of Mark M. Richard, 
Deputy Assistant Attorney General, Criminal Division, United States 
Department of Justice).
---------------------------------------------------------------------------
    In general, the mere fact that the execution of a request 
would involve the disclosure of records protected by bank or 
business secrecy in the Requested State would not justify 
invocation of the ``essential public interests'' provision. 
Indeed, a major objective of the Treaty is to provide a formal, 
agreed channel for making such information available for law 
enforcement purposes. However, Barbados' delegation stressed 
that in exceptional circumstances the disclosure of business or 
banking secrets could be of such significant importance that it 
could prejudice that State's ``essential public interests.'' 
For example, if the disclosure of particular business records 
in responding to a United States request for assistance could 
substantially prejudice an entire industry, such as the off-
shore banking or reinsurance industries, which is of special 
importance to the Barbadian economy, an ``essential public 
interests'' denial might be appropriate. It should be noted 
that this provision is bilateral, and in similar circumstances 
could be used by the United States to prevent a similar 
prejudice to its essential public interests. The Barbadian view 
of this provision is thus similar to the Swiss view of Article 
3(2) of the U.S.-Switzerland Treaty. \9\
---------------------------------------------------------------------------
    \9\ Technical Analysis to the Treaty between the U.S. and 
Switzerland on Mutual Assistance in Criminal Matters, signed May 25, 
1973. U.S. Senate Exec. F, 94th Cong. 2d Sess. p. 39 (1976).
---------------------------------------------------------------------------
    Paragraph (1)(c) permits the denial of a request if it is 
not made in conformity with the Treaty.
    Paragraph (1)(d) permits denial of a request if it involves 
a political offense. \10\It is anticipated that the Central 
Authorities will employ jurisprudence similar to that used in 
the extradition treaties for determining what is a ``political 
offense.'' These restrictions are similar to those found in 
other mutual legal assistance treaties.
---------------------------------------------------------------------------
    \10\ See Section 18(2)(a) and 18(2)(b), Barbados Mutual Assistance 
Act, 1992.
---------------------------------------------------------------------------
    Paragraph (1)(e) permits denial of a request if there is no 
``dual criminality'' with respect to requests made pursuant to 
Article 14 (involving searches and seizures) or Article 16 
(involving asset forfeiture matters).
    Finally, Paragraph (1)(f) permits denial of the request if 
execution would be contrary to the Constitution of the 
Requested State. This provision was deemed necessary under 
Barbadian law, \11\ and is similar to clauses in other United 
States mutual legal assistance treaties. \12\
---------------------------------------------------------------------------
    \11\ Section 18(2)(d), Barbados Mutual Assistance Act, 1992.
    \12\ U.S.-Jamaica Mutual Legal Assistance Treaty, July 7, 1989, 
art. 2(1)(e); U.S.-Nigeria Mutual Legal Assistance Treaty, Sept. 13, 
1989, art. III(1)(d).
---------------------------------------------------------------------------
    Paragraph 2 is similar to Article 3(2) of the U.S.-
Switzerland Mutual Legal Assistance Treaty, \13\ and obliges 
the Requested State to consider imposing appropriate conditions 
on its assistance in lieu of denying a request outright 
pursuant to the first paragraph of the article. For example, a 
Contracting Party might request information that could be used 
either in a routine criminal case (which would be within the 
scope of the Treaty) or in a politically motivated prosecution 
(which would be subject to refusal). This paragraph would 
permit the Requested State to provide the information on the 
condition that it be used only in the routine criminal case. 
Naturally, the Requested State would notify the Requesting 
State of any proposed conditions before actually delivering the 
evidence in question, thereby according the Requesting State an 
opportunity to indicate whether it is willing to accept the 
evidence subject to the conditions. If the Requesting State 
does accept the evidence subject to the conditions, it must 
honor the conditions.
---------------------------------------------------------------------------
    \13\ U.S.-Switzerland Mutual Legal Assistance Treaty, May 25, 1973, 
art. 26, 27 U.S.T. 2019, T.I.A.S. No. 8302, 1052 U.N.T.S. 61.
---------------------------------------------------------------------------
    Paragraph 3 effectively requires that the Central Authority 
of the Requested State promptly notify the Central Authority of 
the Requesting State of the basis for any denial of assistance. 
This ensures that, when a request is only partly executed, the 
Requested State will provide some explanation for not providing 
all of the information or evidence sought. This should avoid 
misunderstandings, and enable the Requesting State to better 
prepare its requests in the future.

                Article 4--Form and Contents of Requests

    Paragraph 1 requires that requests be in writing, except 
that the Central Authority of the Requested State may accept a 
request in another form in ``emergency situations.'' A request 
in another form must be confirmed in writing within ten days 
unless the Central Authority of the Requested State agrees 
otherwise.
    Paragraph 2 lists the four kinds of information deemed 
crucial to the efficient operation of the Treaty which must be 
included in each request. Paragraph 3 outlines kinds of 
information that are important but not always crucial, and 
should be provided ``to the extent necessary and possible.'' In 
keeping with the intention of the Parties that requests be as 
simple and straightforward as possible, there is no requirement 
under the Treaty that a request be legalized or certified in 
any particular manner.

                    Article 5--Execution of Requests

    Paragraph 1 requires each Central Authority promptly to 
execute requests. The negotiators intended that the Central 
Authority, upon receiving a request, will first review the 
request, then promptly notify the Central Authority of the 
Requesting State if the request does not appear to comply with 
the Treaty's terms. If the request does satisfy the Treaty's 
requirements and the assistance sought can be provided by the 
Central Authority itself, the request will be fulfilled 
immediately. If the request meets the Treaty's requirements but 
its execution requires action by some other entity in the 
Requested State, the Central Authority will promptly transmit 
the request to the correct entity for execution.
    When the United States is the Requested State, it is 
anticipated that the Central Authority will transmit most 
requests to federal investigators, prosecutors, or judicial 
officials for execution if the Central Authority deems it 
appropriate to do so.
    Paragraph 1 further authorizes and requires the federal, 
state, or local agency or authority selected by the Central 
Authority to do everything within its power and take whatever 
action would be necessary to execute the request. This 
provision is not intended or understood to authorize the use of 
the grand jury in the United States for the collection of 
evidence pursuant to a request from Barbados. Rather, it is 
anticipated that when a request from Barbados requires 
compulsory process for execution, the United States Department 
of Justice would ask a federal court to issue the necessary 
process under Title 28, United States Code, Section 1782, and 
the provisions of the Treaty. \14\
---------------------------------------------------------------------------
    \14\ This paragraph of the Treaty specifically authorizes United 
States courts to use all of their powers to issue subpoenas and other 
process to satisfy a request under the Treaty.
---------------------------------------------------------------------------
    The third sentence in Article 5(1) reads ``[t]he competent 
judicial or other authorities of the Requested State shall have 
power to issue subpoenas, search warrants, or other orders 
necessary to execute the request.'' This language reflects an 
understanding that the Parties intend to provide each other 
with every available form of assistance from judicial and 
executive branches of government in the execution of mutual 
assistance requests. The phrase refers to ``judicial or other 
authorities'' to include all those officials authorized to 
issue compulsory process that might be needed in executing a 
request. For example, in Barbados, justices of the peace and 
senior police officers are empowered to issue certain kinds of 
compulsory process under certain circumstances.
    Paragraph 2 states that the Central Authority of the 
Requested State shall make all necessary arrangements for and 
meet the costs of representing the Requesting State in any 
proceedings in the Requested State arising out of the request 
for assistance. Thus, it is understood that if execution of the 
request entails action by a judicial or administrative agency, 
the Central Authority of the Requested State shall arrange for 
the presentation of the request to that court or agency at no 
cost to the Requesting State. Since the cost of retaining 
counsel abroad to present and process letters rogatory is 
sometimes quite high, this provision for reciprocal legal 
representation in Paragraph 2 is a significant advance in 
international legal cooperation. It is also understood that 
should the Requesting State choose to hire private counsel for 
a particular request, it is free to do so at its own expense.
    Paragraph 3 is inspired by Article 5(5) of the U.S.-
Jamaican Mutual Legal Assistance Treaty \15\, and provides, 
that ``[r]equests shall be executed in accordance with the 
internal laws and procedures of the Requested State, except to 
the extent that this Treaty provides otherwise.'' Thus, the 
method of executing a request for assistance under the Treaty 
must be in accordance with the Requested State's internal laws 
absent specific contrary procedures in the Treaty itself. 
Neither State is expected to take any action pursuant to a 
treaty request which would be prohibited under its internal 
laws. For the United States, the Treaty is intended to be self-
executing; no new or additional legislation will be needed to 
carry out the obligations undertaken.
---------------------------------------------------------------------------
    \15\  U.S.-Jamaica Mutual Legal Assistance Treaty, supra note 12.
---------------------------------------------------------------------------
    The same paragraph requires that procedures specified in 
the request shall be followed in the execution of the request 
except to the extent that those procedures cannot lawfully be 
followed in the Requested State. This provision is necessary 
for two reasons.
    First, there are significant differences between the 
procedures which must be followed by United States and Barbados 
authorities in collecting evidence in order to assure the 
admissibility of that evidence at trial. For instance, United 
States law permits documentary evidence taken abroad to be 
admitted in evidence if the evidence is duly certified and the 
defendant has been given fair opportunity to test its 
authenticity. \16\ Barbados law currently contains no similar 
provision. Thus, documents assembled in Barbados in strict 
conformity with Barbadian procedures on evidence might not be 
admissible in United States courts. Similarly, United States 
courts utilize procedural techniques such as videotape 
depositions to enhance the reliability of evidence taken 
abroad, and some of these techniques, while not forbidden, are 
not used in Barbados.
---------------------------------------------------------------------------
    \16\ Title 18, United States Code, Section 3505.
---------------------------------------------------------------------------
    Second, the evidence in question could be needed for 
subjection to forensic examination, and sometimes the 
procedures which must be followed to enhance the scientific 
accuracy of such tests do not coincide with those utilized in 
assembling evidence for admission into evidence at trial. The 
value of such forensic examinations could be significantly 
lessened--and the Requesting State's investigation could be 
retarded--if the Requested State were to insist unnecessarily 
on handling the evidence in a manner usually reserved for 
evidence to be presented to its own courts. Both delegations 
agreed that the Treaty's primary goal of enhancing law 
enforcement in the Requesting State could be frustrated if the 
Requested State were to insist on producing evidence in a 
manner which renders the evidence inadmissible or less 
persuasive in the Requesting State. For this reason, Paragraph 
3 requires the Requested State to follow the procedure outlined 
in the request to the extent that it can, even if the procedure 
is not that usually employed in its own proceedings. However, 
if the procedure called for in the request is unlawful in the 
Requested State (as opposed to simply unfamiliar there), the 
appropriate procedure under the law applicable for 
investigations or proceedings in the Requested State will be 
utilized.
    Paragraph 4 states that a request for assistance need not 
be executed immediately when the Central Authority of the 
Requested State determines that execution would interfere with 
an ongoing investigation or legal proceeding in the Requested 
State. The Central Authority of the Requested Party may, in its 
discretion, take such preliminary action as deemed advisable to 
obtain or preserve evidence that might otherwise be lost before 
the conclusion of the investigation or legal proceedings in 
that State. The paragraph also allows the Requested State to 
provide the information sought to the Requesting State subject 
to conditions needed to avoid interference with the Requested 
State's proceedings.
    It is anticipated that some United States requests for 
assistance may contain information which under our law must be 
kept confidential. For example, it may be necessary to set out 
information that is ordinarily protected by Rule 6(e), Federal 
Rules of Criminal Procedure, in the course of an explanation of 
``the subject matter and nature of the investigation, 
prosecution, or proceeding'' as required by Article 4(2)(b). 
Therefore, Paragraph 5 of Article 5 enables the Requesting 
State to call upon the Requested State to keep the information 
in the request confidential. \17\ If the Requested State cannot 
execute the request without disclosing the information in 
question (as might be the case if execution requires a public 
judicial proceeding in the Requested State), or if for some 
other reason this confidentiality cannot be assured, the Treaty 
obliges the Requested State to so indicate, thereby giving the 
Requesting State an opportunity to withdraw the request rather 
than risk jeopardizing an investigation or proceeding by public 
disclosure of the information.
---------------------------------------------------------------------------
    \17\ This provision is similar to language in other United States 
mutual legal assistance treaties. See e.g., U.S.-Mexico Mutual Legal 
Assistance Treaty, Dec. 9, 1987, art. 4(5); U.S.-Canada Mutual Legal 
Assistance Treaty, Mar. 18, 1985; art. 6(5), U.S.-Italy Mutual Legal 
Assistance Treaty, Nov. 9, 1982, art. 8(2); US.-Philippines Mutual 
Legal Assistance Treaty, supra note 5, art. 5(5).
---------------------------------------------------------------------------
    Paragraph 6 states that the Central Authority of the 
Requested State shall respond to reasonable inquiries by the 
Requesting State concerning progress of its request. This is to 
encourage open communication between the Central Authorities in 
monitoring the status of specific requests.
    Paragraph 7 requires that the Central Authority of the 
Requested State promptly notify the Central Authority of the 
Requesting State of the outcome of the execution of a request. 
If the assistance sought is not provided, the Central Authority 
of the Requested State must also explain the basis for the 
outcome to the Central Authority of the Requesting State. For 
example, if the evidence sought could not be located, the 
Central Authority of the Requested State would report that fact 
to the Central Authority of the Requesting State.

                            Article 6--Costs

    This article reflects the increasingly accepted 
international rule that each State shall bear the expenses 
incurred within its territory in executing a legal assistance 
treaty request. This is consistent with similar provisions in 
other United States mutual legal assistance treaties. \18\ 
Article 6 does, however, oblige the Requesting State to pay 
fees of expert witnesses, translation, interpretation and 
transcription costs, and allowances and expenses related to 
travel of persons pursuant to Articles 10 and 11.
---------------------------------------------------------------------------
    \18\ See, e.g., U.S.-Canada Mutual Legal Assistance Treaty, supra 
note 17, art. 8; U.S.-Philippines Mutual Legal Assistance Treaty, supra 
note 5, art. 6.
---------------------------------------------------------------------------

                     Article 7--Limitations on Use

    Paragraph 1 states that the Central Authority of the 
Requested State may require that information provided under the 
Treaty not be used for any purpose other than that stated in 
the request without the prior consent of the Requested State. 
If such confidentiality is requested, the Requesting State must 
comply with the conditions. It will be recalled that Article 
4(2)(d) states that the Requesting State must specify the 
purpose for which the information or evidence sought under the 
Treaty is needed.
    It is not anticipated that the Central Authority of the 
Requested State will routinely request use limitations under 
paragraph 1. Rather, it is expected that such limitations will 
be requested sparingly, only when there is good reason to 
restrict the utilization of the evidence.
    Paragraph 2 states that the Requested State may request 
that the information or evidence it provides to the Requesting 
State be kept confidential. Under most United States mutual 
legal assistance treaties, conditions of confidentiality are 
imposed only when necessary, and are tailored to fit the 
circumstances of each particular case. For instance, the 
Requested State may wish to cooperate with the investigation in 
the Requesting State but choose to limit access to information 
which might endanger the safety of an informant, or unduly 
prejudice the interests of persons not connected in any way 
with the matter being investigated in the Requesting State. 
Paragraph 2 requires that if conditions of confidentiality are 
imposed, the Requesting State need only make ``best efforts'' 
to comply with them. This ``best efforts'' language was used 
because the purpose of the Treaty is the production of evidence 
for use at trial, and that purpose would be frustrated if the 
Requested State could routinely permit the Requesting State to 
see valuable evidence, but impose confidentiality restrictions 
which prevent the Requesting State from using it.
    The Barbados delegation expressed particular concern that 
information supplied by Barbados in response to United States 
requests must receive real and effective confidentiality, and 
not be disclosed under the Freedom of Information Act. Both 
delegations agreed that since this article permits the 
Requested State to prohibit the Requesting State's disclosure 
of information for any purpose other than that stated in the 
request, a Freedom of Information Act request that seeks 
information that the United States obtained under the Treaty 
would have to be denied if the United States received the 
information on the condition that it be kept confidential.
    If the United States Government were to receive evidence 
under the Treaty that seems to be exculpatory to the defendant 
in another case, the United States might be obliged to share 
the evidence with the defendant in the second case. Brady v. 
Maryland, 373 U.S. 83 (1963). Therefore, Paragraph 3 states 
that nothing in Article 7 shall preclude the use or disclosure 
of information to the extent that there is an obligation to do 
so under the Constitution of the Requesting State in a criminal 
prosecution. Any such proposed disclosure shall be notified by 
the Requesting State to the Requested State in advance.
    Paragraph 4 states that once evidence obtained under the 
Treaty has been revealed to the public in accordance with 
paragraphs 1 or 2, the Requesting State is free to use the 
evidence for any purpose. Once evidence obtained under the 
Treaty has been revealed to the public in a trial, that 
information effectively becomes part of the public domain, and 
is likely to become a matter of common knowledge, perhaps even 
be described in the press. The negotiators noted that once this 
has occurred, it is practically impossible for the Central 
Authority of the Requesting Party to block the use of that 
information by third parties.
    It should be noted that under Article 1(4), the 
restrictions outlined in Article 7 are for the benefit of the 
Contracting Parties, and the invocation and enforcement of 
these provisions are left entirely to the Contracting Parties. 
If a person alleges that a Barbados authority seeks to use 
information or evidence obtained from the United States in a 
manner inconsistent with this article, the person can inform 
the Central Authority of the United States of the allegations 
for consideration as a matter between the Contracting Parties.

        Article 8--Testimony or Evidence in the Requested State

    Paragraph 1 states that a person in the Requested State 
from whom testimony or evidence is sought shall be compelled, 
if necessary, to appear and testify or produce items, including 
documents, records, or articles of evidence. The compulsion 
contemplated by this article can be accomplished by subpoena or 
any other means available under the law of the Requested State.
    Paragraph 2 requires that, upon request, the Requested 
State shall furnish information in advance about the date and 
place of the taking of testimony or evidence.
    Paragraph 3 provides that any persons specified in the 
request, including the defendant and his counsel in criminal 
cases, shall be permitted by the Requested State to be present 
and pose questions during the taking of testimony under this 
article.
    Paragraph 4, when read together with Article 5(3), ensures 
that no person will be compelled to furnish information if he 
has a right not to do so under the law of the Requested State. 
Thus, a witness questioned in the United States pursuant to a 
request from Barbados is guaranteed the right to invoke any of 
the testimonial privileges (e.g., attorney client, 
interspousal) available in the United States as well as the 
constitutional privilege against self-incrimination, to the 
extent that it might apply in the context of evidence being 
taken for foreign proceedings. \19\ A witness testifying in 
Barbados may raise any of the similar privileges available 
under Barbadian law.
---------------------------------------------------------------------------
    \19\ This is consistent with the approach taken in Title 28, United 
States Code, Section 1782.
---------------------------------------------------------------------------
    Paragraph 4 does require that if a witness attempts to 
assert a privilege that is unique to the Requesting State, the 
Requested State will take the desired evidence and turn it over 
to the Requesting State along with notice that it was obtained 
over a claim of privilege. The applicability of the privilege 
can then be determined in the Requesting State, where the scope 
of the privilege and the legislative and policy reasons 
underlying the privilege are best understood. A similar 
provision appears in many of our recent mutual legal assistance 
treaties. \20\
---------------------------------------------------------------------------
    \20\ See e.g., U.S.-Netherlands Mutual Legal Assistance Treaty, 
June 12, 1981, art. 5(1), T.I.A.S. No. 10734, 1359 U.N.T.S. 209; U.S.-
Bahamas Mutual Legal Assistance Treaty, June 12 & Aug. 18, 1987, art. 
9(2); U.S.-Mexico Mutual Legal Assistance Treaty, supra note 17, art. 
7(2); U.S.-Philippines Mutual Legal Assistance Treaty, supra note 5, 
art. 8(4).
---------------------------------------------------------------------------
    Paragraph 5 states that evidence produced pursuant to this 
article may be authenticated by an attestation, including, in 
the case of business records, authentication in the manner 
indicated in Form A appended to the Treaty. Thus, the provision 
establishes a procedure for authenticating records in a manner 
essentially similar to Title 18, United States Code, Section 
3505. It is understood that the second and third sentences of 
this paragraph provide for the admissibility of authenticated 
documents as evidence without additional foundation or 
authentication. With respect to the United States, this 
paragraph is self-executing, and does not need implementing 
legislation.
    Article 8(5) provides that the evidence authenticated by 
Form A is ``admissible,'' but of course, it will be up to the 
judicial authority presiding over the trial to determine 
whether the evidence should in fact be admitted. The 
negotiators intended that evidentiary tests other than 
authentication (such as relevance, and materiality) would still 
have to be satisfied in each case.

               Article 9--Records of Government Agencies

    Paragraph 1 obliges each Party to furnish the other with 
copies of publicly available records, including documents or 
information in any form, possessed by a government department 
or agency in the Requested State. The term ``government 
departments and agencies'' includes all executive, judicial, 
and legislative units of the Federal, State, and local level in 
each country.
    Paragraph 2 provides that the Requested State may share 
with its treaty partner copies of nonpublic information in 
government files. The obligation under this provision is 
discretionary, and such requests may be denied in whole or in 
part. Moreover, the article states that the Requested State may 
only exercise its discretion to turn over information in its 
files ``to the same extent and under the same conditions'' as 
it would to its own law enforcement or judicial authorities. It 
is intended that the Central Authority of the Requested State, 
in close consultation with the interested law enforcement 
authorities of that State, will determine that extent and what 
those conditions would be.
    The discretionary nature of this provision was deemed 
necessary because government files in each State contain some 
kinds of information that would be available to investigative 
authorities in that State, but that justifiably would be deemed 
inappropriate to release to a foreign government. For example, 
assistance might be deemed inappropriate where the information 
requested would identify or endanger an informant, prejudice 
sources of information needed in future investigations, or 
reveal information that was given to the Requested State in 
return for a promise that it not be divulged. Of course, a 
request could be denied under this clause if the Requested 
State's law bars disclosure of the information.
    The delegations discussed whether this article should serve 
as a basis for exchange of information in tax matters. It was 
the intention of the United States delegation that the United 
States be able to provide assistance under the Treaty for tax 
offenses, as well as to provide information in the custody of 
the Internal Revenue Service for both tax offenses and non-tax 
offenses under circumstances that such information is available 
to U.S. law enforcement authorities. The United States 
delegation was satisfied after discussion that this Treaty is a 
``convention relating to the exchange of tax information'' for 
purposes of Title 26, United States Code, Section 6103(k)(4), 
and the United States would have the discretion to provide tax 
return information to Barbados under this article in 
appropriate cases. \21\
---------------------------------------------------------------------------
    \21\ Thus, this treaty, like all of the other U.S. bilateral mutual 
legal assistance treaties, authorizes the Parties to provide tax return 
information in appropriate circumstances.
---------------------------------------------------------------------------
    Paragraph 3 states that documents provided under this 
article may be authenticated in accordance with the procedures 
specified in the request, and if authenticated in this manner, 
the evidence shall be admissible in evidence in the Requesting 
State. Thus, the Treaty establishes a procedure for 
authenticating official foreign documents that is consistent 
with Rule 902(3) of the Federal Rules of Evidence and Rule 44, 
Federal Rules of Civil Procedure.
    Paragraph 3, similar to Article 8(5), states that documents 
authenticated under this paragraph shall be ``admissible'' but 
it will, of course, be up to the judicial authority presiding 
over the trial to determine whether the evidence should in fact 
be admitted. The evidentiary tests other than authentication 
(such as relevance or materiality) must be established in each 
case.

             Article 10--Testimony in the Requesting State

    This article provides that upon request, the Requested 
State shall invite persons who are located in its territory to 
travel to the Requesting State to appear before an appropriate 
authority there. It shall notify the Requesting State of the 
invitee's response. An appearance in the Requesting State under 
this article is not mandatory, and the invitation may be 
refused by the prospective witness. The Requesting State would 
be expected to pay the expenses of such an appearance pursuant 
to Article 6 if requested by the person whose appearance is 
sought.
    Paragraph l provides that the person shall be informed of 
the amount and kind of expenses which the Requesting State will 
provide in a particular case. It is assumed that such expenses 
would normally include the costs of transportation, and room 
and board. When the person is to appear in the United States, a 
nominal witness fee would also be provided.
    Paragraph 2 provides that the Central Authority of the 
Requesting State shall inform the Central Authority of the 
Requested State whether any decision has been made that a 
person who is in the Requesting State pursuant to this article 
shall not be subject to service of process, or be detained or 
subjected to any restriction of personal liberty while he is in 
the Requesting State. Most U.S. mutual legal assistance 
treaties anticipate that the Central Authority will determine 
whether to extend such safe conduct, but under the Treaty with 
Barbados, the Central Authority merely reports whether safe 
conduct has been extended. This is because in Barbados only the 
Director of Public Prosecutions can extend such safe conduct, 
and the Attorney General (who is Central Authority for Barbados 
under Article 3 of the Treaty) cannot do so. This ``safe 
conduct'' is limited to acts or convictions that preceded the 
witness's departure from the Requested State. It is understood 
that this provision would not prevent the prosecution of a 
person for perjury or any other crime committed while in the 
Requesting State.
    Paragraph 3 states that the safe conduct guaranteed in this 
article expires seven days after the Central Authority of the 
Requesting State has notified the Central Authority of the 
Requested State that the person's presence is no longer 
required, or if the person leaves the territory of the 
Requesting State and thereafter returns to it. However, the 
competent authorities of the Requesting State may extend the 
safe conduct up to fifteen days if they determine that there is 
good cause to do so. For the United States, the ``competent 
authorities'' for these purposes would be the Central 
Authority.

               Article 11--Transfer of Persons in Custody

    In some criminal cases, a need arises for the testimony in 
one country of a witness in custody in another country. In some 
instances, foreign countries are willing and able to ``lend'' 
witnesses to the United States Government, provided the 
witnesses would be carefully guarded while in the United States 
and returned to the foreign country at the conclusion of the 
testimony. On occasion, the United States Justice Department 
has arranged for consenting federal inmates in the United 
States to be transported to foreign countries to assist in 
criminal proceedings. \22\
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    \22\ For example, in September, 1986, the United States Justice 
Department and the United States Drug Enforcement Administration 
arranged for four federal prisoners to be transported to the United 
Kingdom to testify for the Crown in Regina v. Dye, Williamson, Ells, 
Davies, Murphy, and Millard, a major narcotics prosecution in ``the Old 
Bailey'' (Central Criminal Court) in London.
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    Paragraph 1 provides an express legal basis for cooperation 
in these matters. It is based on Article 26 of the United 
States-Switzerland Mutual Legal Assistance Treaty, \23\ which 
in turn is based on Article 11 of the European Convention on 
Mutual Assistance in Criminal Matters. \24\
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    \23\ U.S.-Switzerland Mutual Legal Assistance Treaty, supra note 
13, art. 26.
    \24\ It is also consistent with Sections 10 and 23, Barbados Mutual 
Assistance Act, 1992, and with Title 18, United States Code, Section 
3508.
---------------------------------------------------------------------------
    Paragraph 2 provides that a person in the custody of the 
Requesting State whose presence in the Requested State is 
sought for purposes of assistance under this Treaty may be 
transferred from the Requesting State to the Requested State 
for that purpose if the person consents and if the Central 
Authorities of both States agree. This would also cover 
situations in which a person in custody in the United States on 
a criminal matter has sought permission to travel to another 
country to be present at a deposition being taken there in 
connection with the case. \25\
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    \25\ See also United States v. King, 552 F.2d 833 (9th Cir. 1976), 
cert. denied, 430 U.S. 966 (1977), where the defendants insisted on 
traveling to Japan to be present at the deposition of certain witnesses 
in prison there.
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    Paragraph 3 provides express authority for the receiving 
State to maintain such a person in custody throughout the 
person's stay there, unless the sending State specifically 
authorizes release. This paragraph also authorizes the 
receiving State to return the person in custody to the sending 
State, and provides that this return will occur in accordance 
with terms and conditions agreed upon by the Central 
Authorities. The initial transfer of a prisoner under this 
article requires the consent of the person involved and of both 
Central Authorities, but the provision does not require that 
the person consent to be returned to the sending State.
    Once the receiving State has agreed to assist the sending 
State's investigation or proceeding pursuant to this article, 
it would be inappropriate for the receiving State to hold the 
person transferred and require extradition proceedings before 
allowing him to return to the sending State as agreed. 
Therefore, Paragraph (3)(c) contemplates that extradition 
proceedings will not be required before the status quo is 
restored by the return of the person transferred. Paragraph 
(3)(d) states that the person is to receive credit for time 
served while in the custody of the receiving State. This is 
consistent with United States practice in these matters.
    Article 11 does not provide for any specific ``safe 
conduct'' for persons transferred under this article, because 
it is anticipated that the authorities of the two countries 
will deal with such situations on a case-by-case basis. If the 
person in custody is unwilling to be transferred without safe 
conduct, and the Receiving State is unable or unwilling to 
provide satisfactory assurances in this regard, the person is 
free to decline to be transferred.

       Article 12--Location or Identification of Persons or Items

    This article provides for ascertaining the whereabouts in 
the Requested State of persons (such as witnesses, potential 
defendants, or experts) or items if the Requesting State seeks 
such information. This is a standard provision contained in all 
United States mutual legal assistance treaties. The Treaty 
requires only that the Requested State make ``best efforts'' to 
locate the persons or items sought by the Requesting State. 
\26\ The extent of such efforts will vary, of course, depending 
on the quality and extent of the information provided by the 
Requesting State concerning the suspected location and last 
known location.
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    \26\ This is consistent with Barbados law. See Section 20, Barbados 
Mutual Assistance Act, 1992.
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    The obligation to locate persons or items is limited to 
persons or items that are or may be in the territory of the 
Requested State. Thus, the United States would not be obliged 
to attempt to locate persons or items which may be in third 
countries. In all cases, the Requesting State would be expected 
to supply all available information about the last known 
location of the persons or items sought.

                    Article 13--Service of Documents

    This article creates an obligation on the Requested State 
to use its best efforts to effect the service of documents such 
as summons, complaints, subpoenas, or other legal papers 
relating in whole or in part to a Treaty request. This is 
consistent with Barbados law, \27\ and identical provisions 
appear in several U.S. mutual legal assistance treaties.
---------------------------------------------------------------------------
    \27\ Section 24, Barbados Mutual Assistance Act, 1992.
---------------------------------------------------------------------------
    It is expected that when the United States is the Requested 
State, service under the Treaty will be made by registered mail 
(in the absence of any request by Barbados to follow a 
specified procedure for service) or by the United States 
Marshal's Service in instances in which personal service is 
requested.
    Paragraph 2 provides that when the documents to be served 
call for the appearance of a person in the Requesting State, 
the documents should be received by the Central Authority of 
the Requested State a reasonable time before the date set for 
any such appearance.
    Paragraph 3 requires that proof of service be returned to 
the Requesting State in the manner specified in the request.

                     Article 14--Search and Seizure

    It is sometimes in the interests of justice for one State 
to ask another to search for, secure, and deliver articles or 
objects needed in the former as evidence or for other purposes. 
United States courts can and do execute such requests under 
Title 28, United States Code, Section 1782, \28\ and Barbados' 
courts have the power to execute such requests, under Section 
21 of the Barbados Mutual Assistance Act 1992. \29\ This 
article creates a formal framework for handling such requests.
---------------------------------------------------------------------------
    \28\ See e.g., United States ex Rel. Public Prosecutor of 
Rotterdam, Netherlands v. Van Aalst, Case No 84-52-M-01 (M.D. Fla., 
Orlando Div.) (search warrant issued February 24, 1984).
    \29\ See,In the Matter of the Issuance and Execution of A Search 
Warrant at Premises in Barbados and the Removal of Certain Articles 
Documents and Property Belonging to Applicants; TC Interglobe Services, 
BAJ Marketing, Triple Eight Int'l Services, BLC Services, Facton 
Services vs. Attorney General, No. 1177 of 1996 in the High Court of 
Justice, Civil Division, Barbados (search warrant issued July 12, 
1996).
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    Article 14 requires that the search and seizure request 
include ``information justifying such action under the laws of 
the Requested State.'' This means that normally a request to 
the United States from Barbados will have to be supported by a 
showing of probable cause for the search. A United States 
request to Barbados would have to satisfy the corresponding 
evidentiary standard there, which is ``a reasonable basis to 
believe'' that the specified premises contains articles likely 
to be evidence of the commission of an offense.
    Paragraph 2 is designed to ensure that a record is kept of 
articles seized and of articles delivered up under the Treaty. 
This provision effectively requires that, upon request, every 
official who has custody of a seized item shall certify, 
through the use of Form C appended to this Treaty, the 
continuity of custody, the identity of the item, and the 
integrity of its condition.
    The article also provides that the certificates describing 
continuity of custody will be admissible without additional 
authentication at trial in the Requesting State, thus relieving 
the Requesting State of the burden, expense, and inconvenience 
of having to send its law enforcement officers to the Requested 
State to provided authentication and chain of custody testimony 
each time the Requesting State uses evidence produced under 
this article. As in Articles 8(5) and 9(3), the injunction that 
the certificates be admissible without additional 
authentication leaves the trier of fact free to bar use of the 
evidence itself, in spite of the certificate, if there is some 
reason to do so other than authenticity or chain of custody.
    Paragraph 3 states that the Requested State may require 
that the Requesting State agree to terms and conditions 
necessary to protect the interests of third parties in the item 
to be transferred. This article is similar to provisions in 
many other United States mutual legal assistance treaties. \30\
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    \30\ See e.g., U.S.-Argentina Mutual Legal Assistance Treaty, supra 
note 5; U.S.-Bahamas Mutual Legal Assistance Treaty, supra note 20; 
U.S.-Canada Mutual Legal Assistance Treaty, supra note 17; U.S.-U.K. 
Mutual Legal Assistance Treaty Concerning the Cayman Islands, Jul. 3, 
1986; U.S.-Hungary Mutual Legal Assistance Treaty, Dec. 1, 1994; U.S.-
Korea Mutual Legal Assistance Treaty, Nov. 23, 1993; U.S.-Panama Mutual 
Legal Assistance Treaty, Apr. 11, 1991; U.S.-Philippines Mutual Legal 
Assistance Treaty, supra note 5; U.S.-Spain Mutual Legal Assistance 
Treaty, Nov. 20, 1990; U.S.-United Kingdom Mutual Legal Assistance 
Treaty, Jan. 6, 1994.
---------------------------------------------------------------------------
    The Barbados delegation explained that it is the long-
standing policy of its Government to permit only Barbadian law 
enforcement officials to be present and participate at the 
execution of the search of a private home, and hence it would 
not be able to extend permission for United States officials to 
be present and participate in the execution of a request to 
Barbados for a such a search and seizure under Article 14 of 
the Treaty.

                      Article 15--Return of Items

    This article provides that any documents or items of 
evidence furnished under the Treaty must be returned to the 
Requested State as soon as possible. The delegations understood 
that this requirement would be invoked only if the Central 
Authority of the Requested State specifically requests it at 
the time that the items are delivered to the Requesting State. 
It is anticipated that unless original records or articles of 
significant intrinsic value are involved, the Requested State 
will not usually request return of the items, but this is a 
matter best left to development in practice.

            Article 16--Assistance in Forfeiture Proceedings

    A major goal of the Treaty is to enhance the efforts of 
both the United States and Barbados in combating narcotics 
trafficking. One significant strategy in this effort is action 
by United States authorities to seize and confiscate money, 
property, and other proceeds of drug trafficking.
    This article is similar to a number of United States mutual 
legal assistance treaties, including Article 17 in the U.S.-
Canada Mutual Legal Assistance Treaty and Article 15 of the 
U.S.-Thailand Mutual Legal Assistance Treaty. Paragraph 1 
authorizes the Central Authority of one State to notify the 
other of the existence in the latter's territory of proceeds or 
instrumentalities of offenses that may be forfeitable or 
otherwise subject to seizure. The term ``proceeds or 
instrumentalities'' was intended to include things such as 
money, vessels, or other valuables either used in the crime or 
purchased or obtained as a result of the crime.
    Upon receipt of notice under this article, the Central 
Authority of the State in which the proceeds or 
instrumentalities are located may take whatever action is 
appropriate under its law. For instance, if the assets in 
question are located in the United States and were obtained as 
a result of a fraud in Barbados, they could be seized under 18 
U.S.C. 981 in aid of a prosecution under Title 18, United 
States Code, Section 2314, \31\ or be subject to a temporary 
restraining order in anticipation of a civil action for the 
return of the assets to the lawful owner. Proceeds of a foreign 
kidnapping, robbery, extortion or a fraud by or against a 
foreign bank are civilly and criminally forfeitable in the U.S. 
since these offenses are predicate offenses under U.S. money 
laundering laws. \32\ Thus, it is a violation of United States 
criminal law to launder the proceeds of these foreign fraud or 
theft offenses, when such proceeds are brought into the United 
States.
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    \31\ This statute makes it an offense to transport money or 
valuables in interstate or foreign commerce knowing that they were 
obtained by fraud in the United States or abroad.
    \32\ Title 18, United States Code, Section 1956(c)(7)(B).
---------------------------------------------------------------------------
    If the assets are the proceeds of drug trafficking, it is 
especially likely that the Contracting Parties will be able and 
willing to help one another. Title 18, United States Code, 
Section 981(a)(1)(B) allows for the forfeiture to the United 
States of property ``which represents the proceeds of an 
offense against a foreign nation involving the manufacture, 
importation, sale, or distribution of a controlled substance 
(as such term is defined for the purposes of the Controlled 
Substance Act) within whose jurisdiction such offense or 
activity would be punishable by death or imprisonment for a 
term exceeding one year if such act or activity had occurred 
within the jurisdiction of the United States.'' This is 
consistent with the laws in other countries, such as 
Switzerland and Canada; there is a growing trend among nations 
toward enacting legislation of this kind in the battle against 
narcotics trafficking. \33\ The United States delegation 
expects that Article 16 of the Treaty will enable this 
legislation to be even more effective.
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    \33\ Article 5 of the United Nations Convention Against Illicit 
Traffic in Narcotic Drugs and Psychotropic Substances, calls for the 
States that are party to enact legislation to forfeit illicit drug 
proceeds and to assist one another in such matters. United Nations 
Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic 
Substances, with annex and final act, done at Vienna, Dec. 20, 1988.
---------------------------------------------------------------------------
    Paragraph 2 states that the Parties shall assist one 
another to the extent permitted by their laws in proceedings 
relating to the forfeiture of the proceeds or instrumentalities 
of offenses, to restitution to crime victims, or to the 
collection of fines imposed as sentences in criminal 
convictions. It specifically recognizes that the authorities in 
the Requested State may take immediate action to temporarily 
immobilize the assets pending further proceedings. Thus, if the 
law of the Requested State enables it to seize assets in aid of 
a proceeding in the Requesting State or to enforce a judgment 
of forfeiture levied in the Requesting State, the Treaty 
provides that the Requested State shall do so. The language of 
the article is carefully selected, however, so as not to 
require either State to take any action that would exceed its 
internal legal authority. It does not mandate institution of 
forfeiture proceedings or initiation of temporary 
immobilization in either country against property identified by 
the other if the relevant prosecution authorities do not deem 
it proper to do so. \34\
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    \34\ In Barbados, unlike the U.S., the law does not currently allow 
for civil forfeiture. However, Barbados law does permit forfeiture in 
criminal cases, and ordinarily a defendant must be convicted in order 
for Barbados to confiscate the defendant's property.
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    United States law permits the government to transfer a 
share of certain forfeited property to other countries that 
participate directly or indirectly in the seizure or forfeiture 
of the property. Under regulations promulgated by the Attorney 
General, the amount transferred generally reflects the 
contribution of the foreign government in law enforcement 
activity which led to the seizure and forfeiture of the 
property. The law requires that the transfer be authorized by 
an international agreement between the United States and the 
foreign country, and be approved by the Secretary of State. 
\35\ Paragraph 3 is consistent with this framework, and will 
enable a Contracting Party having custody over proceeds or 
instrumentalities of offenses to transfer forfeited assets, or 
the proceeds of the sale of such assets, to the other 
Contracting Party, at the former's discretion and to the extent 
permitted by their respective laws.
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    \35\ See Title 18, United States Code, Section 981 (i)(1).
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           Article 17--Compatibility with Other Arrangements

    This article states that assistance and procedures provided 
by this Treaty shall not prevent assistance under any other 
applicable international agreements. Article 17 also provides 
that the Treaty shall not be deemed to prevent recourse to any 
assistance available under the internal laws of either country. 
Thus, the Treaty would leave the provisions of United States 
and Barbados law on letters rogatory completely undisturbed, 
and would not alter any pre-existing agreements concerning 
investigative assistance. \36\
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    \36\ E.g., the U.S.-Barbados Agreement for the Exchange of 
Information With Respect to Taxes, Nov. 3, 1984, T.I.A.S. 11203.
---------------------------------------------------------------------------

                        Article 18--Consultation

    Experience has shown that as the parties to a treaty of 
this kind work together over the years, they become aware of 
various practical ways to make the treaty more effective and 
their own efforts more efficient. This article anticipates that 
the Contracting Parties will share those ideas with one 
another, and encourages them to agree on the implementation of 
such measures. Practical measures of this kind might include 
methods of keeping each other informed of the progress of 
investigations and cases in which treaty assistance was 
utilized, or the use of the Treaty to obtain evidence that 
otherwise might be sought via methods less acceptable to the 
Requested State. Very similar provisions are contained in 
recent United States mutual legal assistance treaties. 
37 It is anticipated that the Central Authorities 
will conduct annual consultations pursuant to this article.
---------------------------------------------------------------------------
    \37\  See, e.g., U.S.-Philippines Mutual Legal Assistance Treaty, 
supra note 5, art. 18; U.S.-Canada Mutual Legal Assistance Treaty, 
supra note 17, art. XVIII; U.S.-U.K. Mutual Legal Assistance Treaty 
Concerning the Cayman Islands, supra note 30, art. 18; U.S.-Argentina 
Mutual Legal Assistance Treaty, supra note 5, art. 18.
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      Article 19--Ratification, Entry Into Force, and Termination

    Paragraph 1 contains standard provisions on the procedure 
for ratification and the exchange of the instruments of 
ratification
    Paragraph 2 provides that the Treaty shall enter into force 
immediately upon the exchange of instruments of ratification.
    Paragraph 3 provides that the Treaty shall apply to any 
request presented pursuant to it after it enters into force, 
even if the relevant acts or omissions occurred before the date 
on which the Treaty entered into force. Provisions of this kind 
are common in law enforcement agreements.
    Paragraph 4 contains standard provisions concerning the 
procedure for terminating the Treaty. Termination shall take 
effect six months after the date of written notification. 
Similar termination provisions are included in other United 
States mutual legal assistance treaties.

 Technical Analysis of the Treaty Between the United States of America 
       and Brazil on Mutual Legal Assistance in Criminal Matters

    On October 14, 1997, the United States signed a treaty with 
Brazil on Mutual Legal Assistance in Criminal Matters (``the 
Treaty''). \1\ In recent years, the United States has signed 
similar treaties with a number of countries as part of a highly 
successful effort to modernize the legal tools available to law 
enforcement officials in need of foreign evidence for use in 
criminal cases.
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    \1\ In English, the title of the convention reads ``Treaty,'' but 
the Brazilian delegation insisted, for reasons of Brazilian practice in 
the terminology used to classify different types of international 
agreements, that the Portuguese language text of the document use the 
term ``Acordo,'' or ``Agreement,'' rather than ``Tratado,'' or Treaty. 
Both delegations agreed that the document is subject to advice and 
consent by each nation's legislature before ratification and entry into 
force. See Article 20.
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    The Treaty is expected to be a valuable weapon for the 
United States in its efforts to combat organized crime, 
international drug and firearms trafficking, money laundering, 
large-scale international fraud, and other serious offenses.
    It is anticipated that the Treaty will be implemented in 
the United States pursuant to the procedural framework provided 
by Title 28, United States Code, Section 1782. Brazil has its 
own mutual legal assistance legislation, \2\ but it anticipates 
the enactment of new or additional legislation for implementing 
the Treaty.
---------------------------------------------------------------------------
    \2\ Decree of Law No. 3689 of 3 Oct. 1941, and Government Decree 
No. 20, 14 August 1990.
---------------------------------------------------------------------------
    The following technical analysis of the Treaty was prepared 
by the Office of International Affairs, United States 
Department of Justice, and the Office of the Legal Adviser, 
United States Department of State, based upon the negotiating 
notes. The technical analysis includes a discussion of U.S. law 
and relevant practice as of the date of its preparation, which 
are, of course, subject to change. Foreign law discussions 
reflect the current state of that law, to the best of the 
drafters' knowledge.

                     Article 1--Scope of Assistance

    Paragraph 1 provides for assistance in all matters 
involving the investigation, prosecution, and prevention of 
offenses, and in proceedings relating to criminal matters.
    The negotiators agreed that the term ``investigations'' 
includes grand jury proceedings in the United States, similar 
proceedings in Brazil, and all other legal measures taken prior 
to the filing of formal charges in either State. \3\ The term 
``proceedings'' was intended to cover the full range of 
proceedings in a criminal case, including such matters as bail 
and sentencing hearings. \4\ It was also agreed that since the 
phrase ``proceedings related to criminal matters'' is broader 
than the investigation, prosecution or sentencing process 
itself, proceedings covered by the Treaty need not be strictly 
criminal in nature. For example, proceedings to forfeit to the 
government the proceeds of illegal drug trafficking may be 
civil in nature; \5\ yet such proceedings are covered by the 
Treaty.
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    \3\ The requirement that assistance be provided under the Treaty at 
the pre-indictment stage is critical to the U.S., as our investigators 
and prosecutors often need to obtain evidence from foreign countries in 
order to determine whether or not to file criminal charges. This 
obligation is a reciprocal one; the U.S. must assist Brazil under the 
Treaty in connection with investigations prior to charges being filed 
in Brazil. Prior to the 1996 amendments to Title 28, United States 
Code, Section 1782, some U.S. courts had interpreted that provision to 
require that assistance be provided in criminal matters only if formal 
charges have already been filed abroad, or are ``imminent,'' or ``very 
likely.'' McCarthy, ``A Proposed Unified Standard for U.S. Courts in 
Granting Requests for International Judicial Assistance,'' 15 Fordham 
Int'l Law Rev. 772 (1991). The better view seems to be that Section 
1782 does not contemplate such restrictions. The 1996 amendment to 
Section 1782 effectively overruled these decisions, however, by 
amending subsec. (a) to state ``including criminal investigation 
conducted before formal accusation.'' In any event, this Treaty was 
intentionally written to cover criminal investigations that have just 
begun as well as those that are nearly completed; it draws no 
distinction between cases in which charges are already pending, or are 
``imminent,'' or ``very likely,'' or ``very likely very soon.'' Thus, 
U.S. courts should execute requests under the Treaty without examining 
such factors.
    \4\ One United States court has interpreted Title 28, United States 
Code, Section 1782 as permitting the execution of a request for 
assistance from a foreign country only if the evidence sought is for 
use in proceedings before an adjudicatory ``tribunal'' in the foreign 
country. In Re Letters Rogatory Issued by the Director of Inspection of 
the Gov't of India, 385 F.2d 1017 (2d Cir. 1967); Fonseca v. 
Blumenthal, 620 F.2d 322 (2d Cir. 1980). This interpretation poses an 
unnecessary obstacle to the execution of requests concerning matters 
which are at the investigatory stage, or which are customarily handled 
by administrative officials in the Requesting Party. Since this 
paragraph of the treaty specifically permits requests to be made in 
connection with matters not within the jurisdiction of an adjudicatory 
``tribunal'' in the Requesting State, this paragraph accords the courts 
broader authority to execute requests than does Title 28, United States 
Code, Section 1782, as interpreted in the India and Fonseca cases.
    \5\ Title 21, United States Code, Section 881; Title 18, United 
States Code, Section 1964.
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    Paragraph 2 lists the major types of assistance 
specifically considered by the Treaty negotiators. Most of the 
items listed in the paragraph are described in detail in 
subsequent articles. The list is not intended to be exhaustive, 
a fact that is signaled by the word ``include'' in the opening 
clause of the paragraph and reinforced by the final 
subparagraph.
    Many law enforcement treaties, especially in the area of 
extradition, condition cooperation upon a showing of ``dual 
criminality'', i.e., proof that the facts underlying the 
offense charged in the Requesting State would also constitute 
an offense had they occurred in the Requested State. Paragraph 
3 of this Article makes it clear that there is no requirement 
of dual criminality under this Treaty for cooperation, except 
with respect to assistance or cooperation in connection with 
searches, seizures and forfeitures. Thus, assistance may be 
provided even when the criminal matter under investigation in 
the Requesting State would not be a crime in the Requested 
State. However, if the request relates to a search, seizure, or 
forfeiture, the Central Authority of the Requested State must 
first determine whether the act to which the request relates is 
punishable as an offense under the laws of the Requested State. 
This type of limited dual criminality provision is found in 
other U.S. mutual legal assistance treaties. \6\ During the 
negotiations, the United States delegation received assurances 
from the Brazil delegation that assistance would be available 
under the Treaty to the United States in investigations of all 
major criminal matters, including: narcotics trafficking, 
terrorism, organized crime and racketeering, money laundering 
(notwithstanding the fact that money laundering is not a crime 
in Brazil yet), fraud, Export Control Act violations, child 
exploitation or obscenity, tax offenses, antitrust offenses, 
and crimes against the environment or endangered species.
---------------------------------------------------------------------------
    \6\ See e.g., U.S.-Argentina Treaty on Mutual Legal Assistance in 
Criminal Matters, Dec. 4, 1990, art. 1(3); U.S.-Philippines Treaty on 
Mutual Legal Assistance in Criminal Matters, Nov. 13, 1994, art. 1(3).
---------------------------------------------------------------------------
    Paragraph 4 contains a unique provision that reads:
    ``The Parties recognize the particular importance of 
combating serious criminal activities, including money 
laundering and the illicit trafficking in firearms, ammunition 
and explosives. Without limitation to the scope of assistance 
established in this Article, the Parties shall provide each 
other with assistance in such matters in accordance with this 
Treaty.''
    This paragraph was included to underscore the Treaty's 
applicability to two major law enforcement problems (without 
prejudice, of course, to its applicability to other offenses). 
The large scale fraud and money laundering, particularly in 
public corruption matters, was highlighted recently in the case 
of Jorgina Maria de Freitas Fernandes, a Brazilian citizen who 
stole $34 million from Brazil's social security system and 
moved to Florida with the money. \7\ The disturbing extent to 
which drug traffickers and other criminals in Brazil have 
obtained access to high-powered firearms manufactured in the 
U.S. is also a major problem. Brazilian authorities are moving 
to establish liaison with FinCEN on money laundering and have 
already begun working closely with the Bureau of Alcohol, 
Tobacco, and Firearms, via the U.S. Embassy, on arms 
trafficking cases, and the mutual legal assistance treaty could 
be used to authenticate evidence obtained through these 
channels.
---------------------------------------------------------------------------
    \7\ In the case, the Government of Brazil hired a private law firm, 
which located the missing money and won a judgment against Fernandes in 
Dade County, Florida, Circuit Court for $123 million (including treble 
damages).
---------------------------------------------------------------------------
    Paragraph 5 is a standard provision in United States mutual 
legal assistance treaties \8\ which states that the Treaty is 
intended solely for government to government mutual legal 
assistance. The Treaty is not intended to provide to private 
persons a means of evidence gathering, or to extend to civil 
matters. Private litigants in the United States may continue to 
obtain evidence from Brazil by letters rogatory, an avenue of 
international assistance which this treaty leaves undisturbed. 
Similarly, the paragraph provides that the Treaty is not 
intended to create any right in a private person to suppress or 
exclude evidence thereunder.
---------------------------------------------------------------------------
    \8\ United States v. Johnpoll, 739 F.2d 702 (2d Cir. 1984), cert. 
denied., 469 U.S. 1075 (1984).
---------------------------------------------------------------------------

                     Article 2--Central Authorities

    This article requires that each party establish a ``Central 
Authority'' for transmission and reception of treaty requests. 
The Central Authority of the United States would make all 
requests to Brazil on behalf of federal agencies, state 
agencies, and local law enforcement authorities in the United 
States. \9\ The Brazilian Central Authority would make all 
requests emanating from officials in Brazil.
---------------------------------------------------------------------------
    \9\ The title of the Treaty in English refers to ``Mutual Legal 
Assistance,'' but the Brazilian delegation insisted, for stylistic 
reasons, that the title in Portuguese read ``Assistencia Judiciaria.'' 
The U.S. delegation was concerned that the Portuguese might falsely 
suggest that the Treaty is limited to assistance to judicial 
authorities, but the Brazilian delegation assured the U.S. delegation 
that Article 2 makes it clear that assistance is available under the 
Treaty to prosecutors, investigators, and other members of the criminal 
law enforcement community.
---------------------------------------------------------------------------
    The Central Authority for the Requesting Party will 
exercise discretion as to the form and content of requests, and 
also to the number and priority of requests. The Central 
Authority of the Requested Party is responsible for receiving 
each request, transmitting it to the appropriate federal or 
state agency, court, or other authority for execution, and 
insuring that a timely response is made.
    Paragraph 2 provides that the Attorney General or a person 
designated by the Attorney General will be the Central 
Authority for the United States. The Attorney General has 
delegated the authority to handle the duties of Central 
Authority under mutual assistance treaties to the Assistant 
Attorney General in charge of the Criminal Division. \10\ 
Article 2(2) of the Treaty also states that the Brazilian 
Ministry of Justice will serve as the Central Authority for 
Brazil.
---------------------------------------------------------------------------
    \10\ 28 C.F.R. Sec.  0.64-1. The Assistant Attorney General for the 
Criminal Division has in turn delegated this authority to the Deputy 
Assistant Attorneys General and the Director of the Criminal Division's 
Office of International Affairs, in accordance with the regulation. 
Directive No. 81, 45 Fed. Reg. 79,758 (1980), as corrected at 48 Fed. 
Reg. 54,595 (1983). That delegation was subsequently extended to the 
Deputy Directors of the Office of International Affairs. 59 Fed. Reg. 
42,160 (1994).
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    Paragraph 3 states that the Central Authorities shall 
communicate directly with one another for the purposes of the 
Treaty. \11\ It is anticipated that such communication will be 
accomplished by telephone, telefax, or INTERPOL channels, or 
any other means, at the option of the Central Authorities 
themselves.
---------------------------------------------------------------------------
    \11\ Brazilian law currently requires that foreign requests for 
assistance be transmitted through diplomatic channels to the Justice 
Ministry. Article 783-784, Codigo de Processo Penal. The Brazilian 
delegation assured the U.S. delegation that new legislation would be 
enacted in Brazil to authorize direct communication of requests between 
the Central Authorities.
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                  Article 3--Limitations on Assistance

    This article specifies the limited classes of cases in 
which assistance may be denied under the Treaty.
    Paragraph (1)(a) permits the Requested State to deny a 
request if it relates to an offense under military law that 
would not be an offense under ordinary criminal law. Similar 
provisions appear in many other U.S. mutual legal assistance 
treaties.
    Paragraph (1)(b) permits the Central Authority of the 
Requested State to deny a request if execution of the request 
would prejudice the security or similar essential interests of 
that State. All United States mutual legal assistance treaties 
contain provisions allowing the Requested State to decline to 
execute a request if execution would prejudice its essential 
interests.
    The delegations agreed that the word ``security'' would 
include cases in which assistance might involve disclosure of 
information that is classified for national security reasons. 
It is anticipated that the United States Department of Justice, 
in its role as Central Authority for the United States, would 
work closely with the Department of State and other government 
agencies to determine whether to execute a request that might 
fall in this category.
    The delegations also agreed that the phrase ``essential 
interests'' was intended to narrowly limit the class of cases 
in which assistance may be denied. It would not be enough that 
the Requesting State's case is one that would be inconsistent 
with public policy had it been brought in the Requested State. 
Rather, the Requested State must be convinced that execution of 
the request would seriously conflict with significant public 
policy. An example might be a request involving prosecution by 
the Requesting State of conduct which occurred in the Requested 
State and is constitutionally protected in that State.
    However, it was agreed that ``essential interests'' could 
include interests unrelated to national military or political 
security, and be invoked if the execution of a request would 
violate essential United States interests related to the 
fundamental purposes of the Treaty. For example, one 
fundamental purpose of the Treaty is to enhance law enforcement 
cooperation, and attaining that purpose would be hampered if 
sensitive law enforcement information available under the 
Treaty were to fall into the wrong hands. Therefore, the United 
States Central Authority may invoke paragraph 1(b) to decline 
to provide sensitive or confidential drug related information 
pursuant to a request under this Treaty whenever it determines, 
after appropriate consultation with law enforcement, 
intelligence, and foreign policy agencies, that a senior 
foreign government official who will have access to the 
information is engaged in or facilitates the production or 
distribution of illegal drugs and is using the request to the 
prejudice of a U.S. investigation or prosecution. \12\
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    \12\ This is consistent with the Senate resolution of advice and 
consent to ratification, e.g., of the mutual legal assistance treaties 
with Mexico, Canada, Belgium, Thailand, the Bahamas, and the United 
Kingdom Concerning the Cayman Islands. Cong. Rec. 13884 (1989) (treaty 
citations omitted). See also Staff of Senate Comm. on Foreign 
Relations, 100th Cong., 2nd Sess., Mutual Legal Assistance Treaty 
Concerning the Cayman Islands 67 (1988) (testimony of Mark M. Richard, 
Deputy Assistant Attorney General, Criminal Division, United States 
Department of Justice).
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    It was also agreed that ``essential interests'' permits 
denial of a request if it involves a political offense. It is 
anticipated that the Central Authorities will employ 
jurisprudence similar to that used in the extradition treaties 
for determining what is a ``political offense.'' These 
restrictions are similar to those found in other mutual legal 
assistance treaties.
    Paragraph (1)(c) permits the denial of a request if it is 
not made in conformity with the Treaty.
    Paragraph 2 is similar to Article 3(2) of the U.S.-
Switzerland Mutual Legal Assistance Treaty, \13\ and obliges 
the Requested State to consider imposing appropriate conditions 
on its assistance in lieu of denying a request outright 
pursuant to the first paragraph of the article. For example, a 
Contracting Party might request information that could be used 
either in a routine criminal case (which would be within the 
scope of the Treaty) or in a politically motivated prosecution 
(which would be subject to refusal). This paragraph would 
permit the Requested State to provide the information on the 
condition that it be used only in the routine criminal case. 
Naturally, the Requested State would notify the Requesting 
State of any proposed conditions before actually delivering the 
evidence in question, thereby according the Requesting State an 
opportunity to indicate whether it is willing to accept the 
evidence subject to the conditions. If the Requesting State 
does accept the evidence subject to the conditions, it must 
honor the conditions.
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    \13\ U.S.-Switzerland Mutual Legal Assistance Treaty, May 25, 1973, 
art. 26, 27 U.S.T. 2019, TIAS No. 8302, 1052 UNTS 61.
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    Paragraph 3 effectively requires that the Central Authority 
of the Requested State promptly notify the Central Authority of 
the Requesting State of the basis for any denial of assistance. 
This ensures that, when a request is only partly executed, the 
Requested State will provide some explanation for not providing 
all of the information or evidence sought. This should avoid 
misunderstandings, and enable the Requesting State to better 
prepare its requests in the future.

                Article 4--Form and Contents of Requests

    Paragraph 1 requires that requests be in writing, except 
that the Central Authority of the Requested State may accept a 
request in another form in ``urgent situations.'' A request in 
another form must be confirmed in writing within thirty days 
unless the Central Authority of the Requested State agrees 
otherwise. Requests must be in the language of the Requested 
State unless otherwise agreed.
    Paragraph 2 lists the four kinds of information deemed 
crucial to the efficient operation of the Treaty which must be 
included in each request. Paragraph 3 outlines kinds of 
information that are important but not always crucial, and 
should be provided ``to the extent necessary and possible.'' In 
keeping with the intention of the Parties that requests be as 
simple and straightforward as possible, there is no requirement 
under the Treaty that a request be legalized or certified in 
any particular manner.

                    Article 5--Execution of Requests

    Paragraph 1 requires each Central Authority promptly to 
execute requests. The negotiators intended that the Central 
Authority, upon receiving a request, will first review the 
request, then promptly notify the Central Authority of the 
Requesting State if the request does not appear to comply with 
the Treaty's terms. If the request does satisfy the Treaty's 
requirements and the assistance sought can be provided by the 
Central Authority itself, the request will be fulfilled 
immediately. If the request meets the Treaty's requirements but 
its execution requires action by some other entity in the 
Requested State, the Central Authority will promptly transmit 
the request to the correct entity for execution.
    When the United States is the Requested State, it is 
anticipated that the Central Authority will transmit most 
requests to federal investigators, prosecutors, or judicial 
officials for execution if the Central Authority deems it 
appropriate to do so.
    Paragraph 1 further authorizes and requires the federal, 
state, or local agency or authority selected by the Central 
Authority to do everything within its power and take whatever 
action would be necessary to execute the request. This 
provision is not intended or understood to authorize the use of 
the grand jury in the United States for the collection of 
evidence pursuant to a request from Brazil. Rather, it is 
anticipated that when a request from Brazil requires compulsory 
process for execution, the United States Department of Justice 
would ask a federal court to issue the necessary process under 
Title 28, United States Code, Section 1782, and the provisions 
of the Treaty. The third sentence in Article 5(1) reads ``[t]he 
courts of the Requested State shall issue subpoenas, search 
warrants, or other orders necessary to execute the request.'' 
\14\ This language reflects an understanding that the Parties 
intend to provide each other with every available form of 
assistance from judicial and executive branches of government 
in the execution of mutual assistance requests.
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    \14\ This paragraph of the Treaty, thus, specifically authorizes 
United States courts to use all of their powers to issue subpoenas and 
other process to satisfy a request under the Treaty.
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    Paragraph 2 states that the Central Authority of the 
Requested State shall make all necessary arrangements for and 
meet the costs of representing the Requesting State in any 
proceedings in the Requested State arising out of the request 
for assistance. Thus, it is understood that if execution of the 
request entails action by a judicial or administrative agency, 
the Central Authority of the Requested State shall arrange for 
the presentation of the request to that court or agency at no 
cost to the Requesting State. Brazil's Ministry of Justice, 
which will be its Central Authority under the Treaty, currently 
lacks the power to represent the U.S. before Brazilian courts 
in mutual legal assistance treaty matters. Therefore, the 
Brazilian delegation assured the U.S. delegation that until 
such time as appropriate legislation is in place enabling such 
representation, the Brazilian Government's Central Authority 
will hire private attorneys to represent the U.S. when our 
mutual legal assistance requests are presented to Brazilian 
courts. This will require the appropriation of funds, though, 
and cannot begin before fiscal year 1998.
    Paragraph 3 is inspired by Article 5(5) of the U.S.-
Jamaican Mutual Legal Assistance Treaty \15\, and provides, 
that ``[r]equests shall be executed in accordance with the laws 
of the Requested State except to the extent that this Treaty 
provides otherwise.'' Thus, the method of executing a request 
for assistance under the Treaty must be in accordance with the 
Requested State's internal laws absent specific contrary 
procedures in the Treaty itself. Neither State is expected to 
take any action pursuant to a treaty request which would be 
prohibited under its internal laws. For the United States, the 
Treaty is intended to be self-executing; no new or additional 
legislation will be needed to carry out the obligations 
undertaken.
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    \15\ U.S.-Jamaica Mutual Legal Assistance Treaty, July 7, 1989.
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    The same paragraph requires that procedures specified in 
the request shall be followed in the execution of the request 
except to the extent that those procedures cannot lawfully be 
followed in the Requested State. This provision is necessary 
for two reasons.
    First, there are significant differences between the 
procedures which must be followed by United States and 
Brazilian authorities in collecting evidence in order to assure 
the admissibility of that evidence at trial. For instance, 
United States law permits documentary evidence taken abroad to 
be admitted in evidence if the evidence is duly certified and 
the defendant has been given fair opportunity to test its 
authenticity. \16\ Brazilian law currently contains no similar 
provision. Thus, documents assembled in Brazil in strict 
conformity with Brazilian procedures on evidence might not be 
admissible in United States courts. Similarly, United States 
courts utilize procedural techniques such as videotape 
depositions to enhance the reliability of evidence taken 
abroad, and some of these techniques, while not forbidden, are 
not used in Brazil.
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    \16\ Title 18, United States Code, Section 3505.
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    Second, the evidence in question could be needed for 
subjection to forensic examination, and sometimes the 
procedures which must be followed to enhance the scientific 
accuracy of such tests do not coincide with those utilized in 
assembling evidence for admission into evidence at trial. The 
value of such forensic examinations could be significantly 
lessened--and the Requesting State's investigation could be 
retarded--if the Requested State were to insist unnecessarily 
on handling the evidence in a manner usually reserved for 
evidence to be presented to its own courts.
    Both delegations agreed that the Treaty's primary goal of 
enhancing law enforcement in the Requesting State could be 
frustrated if the Requested State were to insist on producing 
evidence in a manner which renders the evidence inadmissible or 
less persuasive in the Requesting State. For this reason, 
Paragraph 3 requires the Requested State to follow the 
procedure outlined in the request to the extent that it can, 
even if the procedure is not that usually employed in its own 
proceedings. However, if the procedure called for in the 
request is unlawful in the Requested State (as opposed to 
simply unfamiliar there), the appropriate procedure under the 
law applicable for investigations or proceedings in the 
Requested State will be utilized.
    Paragraph 4 states that a request for assistance need not 
be executed immediately when the Central Authority of the 
Requested State determines that execution would interfere with 
an ongoing investigation or legal proceeding in the Requested 
State. The Central Authority of the Requested Party may, in its 
discretion, take such preliminary action as deemed advisable to 
obtain or preserve evidence that might otherwise be lost before 
the conclusion of the investigation or legal proceedings in 
that State. The paragraph also allows the Requested State to 
provide the information sought to the Requesting State subject 
to conditions needed to avoid interference with the Requested 
State's proceedings.
    It is anticipated that some United States requests for 
assistance may contain information which under our law must be 
kept confidential. For example, it may be necessary to set out 
information that is ordinarily protected by Rule 6(e), Federal 
Rules of Criminal Procedure, in the course of an explanation of 
``a description of the subject matter and nature of the 
investigation, prosecution, or proceeding'' as required by 
Article 4(2)(b). Therefore, Paragraph 5 of Article 5 enables 
the Requesting State to call upon the Requested State to keep 
the information in the request confidential. \17\ If the 
Requested State cannot execute the request without disclosing 
the information in question (as might be the case if execution 
requires a public judicial proceeding in the Requested State), 
or if for some other reason this confidentiality cannot be 
assured, the Treaty obliges the Requested State to so indicate, 
thereby giving the Requesting State an opportunity to withdraw 
the request rather than risk jeopardizing an investigation or 
proceeding by public disclosure of the information.
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    \17\ This provision is similar to language in other United States 
mutual legal assistance treaties. See e.g., U.S.-Mexico Mutual Legal 
Assistance Treaty, Dec. 9, 1987, art. 4(5); U.S.- Canada Mutual Legal 
Assistance Treaty, Mar. 18, 1985; art. 6(5), U.S.-Italy Mutual Legal 
Assistance Treaty, Nov. 9, 1982, art. 8(2); US.-Philippines Mutual 
Legal Assistace Treaty, supra note 6, art. 5(5).
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    Paragraph 6 states that the Central Authority of the 
Requested State shall respond to reasonable inquiries by the 
Requesting State concerning progress of its request. This is to 
encourage open communication between the Central Authorities in 
monitoring the status of specific requests.
    Paragraph 7 requires that the Central Authority of the 
Requested State promptly notify the Central Authority of the 
Requesting State of the outcome of the execution of a request. 
If the assistance sought is not provided, the Central Authority 
of the Requested State must also explain the basis for the 
outcome to the Central Authority of the Requesting State. For 
example, if the evidence sought could not be located, the 
Central Authority of the Requested State would report that fact 
to the Central Authority of the Requesting State.

                            Article 6--Costs

    This article reflects the increasingly accepted 
international rule that each State shall bear the expenses 
incurred within its territory in executing a legal assistance 
treaty request. This is consistent with similar provisions in 
other United States mutual legal assistance treaties. \18\ 
Article 6 does, however, oblige the Requesting State to pay 
fees of expert witnesses, translation, interpretation and 
transcription costs, and allowances and expenses related to 
travel of persons pursuant to Articles 10 and 11.
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    \18\ See, e.g., U.S.-Canada Mutual Legal Assistance Treaty, supra 
note 17, art. 8; U.S.-Philippines Mutual Legal Assistance Treaty, supra 
note 6, art. 6.
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                     Article 7--Limitations on Use

    Paragraph 1 states that the Central Authority of the 
Requested State may require that information provided under the 
Treaty not be used for any purpose other than that stated in 
the request without the prior consent of the Requested State. 
If such confidentiality is requested, the Requesting State must 
comply with the conditions. It will be recalled that Article 
4(2)(d) states that the Requesting State must specify the 
purpose for which the information or evidence sought under the 
Treaty is needed.
    It is not anticipated that the Central Authority of the 
Requested State will routinely request use limitations under 
paragraph 1. Rather, it is expected that such limitations will 
be requested sparingly, only when there is good reason to 
restrict the utilization of the evidence.
    Paragraph 2 states that the Requested State may request 
that the information or evidence it provides to the Requesting 
State be kept confidential or be used only subject to terms and 
conditions it may specify. Under most United States mutual 
legal assistance treaties, conditions of confidentiality are 
imposed only when necessary, and are tailored to fit the 
circumstances of each particular case. For instance, the 
Requested State may wish to cooperate with the investigation in 
the Requesting State but choose to limit access to information 
which might endanger the safety of an informant, or unduly 
prejudice the interests of persons not connected in any way 
with the matter being investigated in the Requesting State.
    If the United States Government were to receive evidence 
under the Treaty that seems to be exculpatory to the defendant 
in another case, the United States might be obliged to share 
the evidence with the defendant in the second case. Brady v. 
Maryland, 373 U.S. 83 (1963). Therefore, Paragraph 3 states 
that nothing inSec. Sec. rticle 7 shall preclude the use or 
disclosure of information to the extent that there is an 
obligation to do so under the Constitution of the Requesting 
State in a criminal prosecution. Any such proposed disclosure 
shall be notified by the Requesting State to the Requested 
State in advance.
    Paragraph 4 states that once information or evidence 
obtained under the Treaty has been revealed to the public in a 
manner consistent with paragraphs 1 or 2, the Requesting State 
is free to use the evidence for any purpose. Once evidence 
obtained under the Treaty has been revealed to the public in a 
trial, that information effectively becomes part of the public 
domain, and is likely to become a matter of common knowledge, 
perhaps even be described in the press. The negotiators noted 
that once this has occurred, it is practically impossible for 
the Central Authority of the Requesting Party to block the use 
of that information by third parties.
    It should be noted that under Article 1(5), the 
restrictions outlined in Article 7 are for the benefit of the 
Contracting Parties, and the invocation and enforcement of 
these provisions are left entirely to the Contracting Parties. 
If a person alleges that a Brazilian authority seeks to use 
information or evidence obtained from the United States in a 
manner inconsistent with this article, the person can inform 
the Central Authority of the United States of the allegations 
for consideration as a matter between the Contracting Parties.

        Article 8--Testimony or Evidence in the Requested State

    Paragraph 1 states that a person in the Requested State 
from whom testimony or evidence is sought shall be compelled, 
if necessary, to appear and testify or produce items, including 
documents, records, or articles of evidence. The compulsion 
contemplated by this article can be accomplished by subpoena or 
any other means available under the law of the Requested State.
    Paragraph 2 requires that, upon request, the Requested 
State shall furnish information in advance about the date and 
place of the taking of testimony or evidence.
    Paragraph 3 provides that any persons specified in the 
request, including the defendant and his counsel in criminal 
cases, shall be permitted by the Requested State to be present 
and pose questions during the taking of testimony under this 
article. Paragraph 4, when read together with Article 5(3), 
ensures that no person will be compelled to furnish information 
if he has a right not to do so under the law of the Requested 
State. Thus, a witness questioned in the United States pursuant 
to a request from Brazil is guaranteed the right to invoke any 
of the testimonial privileges (e.g., attorney client, 
interspousal) available in the United States as well as the 
constitutional privilege against self-incrimination, to the 
extent that it might apply in the context of evidence being 
taken for foreign proceedings. \19\ A witness testifying in 
Brazil may raise any of the similar privileges available under 
Brazilian law.
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    \19\ This is consistent with the approach taken in Title 28, United 
States Code, Section 1782.
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    Paragraph 4 does require that if a witness attempts to 
assert a privilege that is unique to the Requesting State, the 
Requested State will take the desired evidence and turn it over 
to the Requesting State along with notice that it was obtained 
over a claim of privilege. The applicability of the privilege 
can then be determined in the Requesting State, where the scope 
of the privilege and the legislative and policy reasons 
underlying the privilege are best understood. A similar 
provision appears in many of our recent mutual legal assistance 
treaties. \20\
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    \20\ See e.g., U.S.-Netherlands Mutual Legal Assistance Treaty, 
June 12, 1981, art. 5(1), TIAS No. 10734, 1359 UNTS 209; U.S.- Bahamas 
Mutual Legal Assistance Treaty, June 12 & Aug. 18, 1987, art. 9(2); 
U.S.-Mexico Mutual Legal Assistance Treaty, Supra note 17, art. 7(2); 
U.S.-Philippines Mutual egal Assistance Treaty, supra note 6, art. 
8(4).
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    Paragraph 5 states that evidence produced pursuant to this 
article may be authenticated by an attestation, including, in 
the case of business records, authentication by means of the 
form appended to the Treaty. \21\ Thus, the provision 
establishes a procedure for authenticating records in a manner 
essentially similar to Title 18, United States Code, Section 
3505. It is understood that the second and third sentences of 
this paragraph provide for the admissibility of authenticated 
documents as evidence without additional foundation or 
authentication. With respect to the United States, this 
paragraph is self-executing, and does not need implementing 
legislation.
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    \21\ Brazilian authorities told the U.S. delegation that a person 
in Brazil who made a false statement in connection with these 
authentication certificates would be subject to prosecution under Art. 
342 of Brazil's penal code.
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    Article 8(5) provides that the evidence authenticated by 
Form A is ``admissible,'' but of course, it will be up to the 
judicial authority presiding over the trial to determine 
whether the evidence should in fact be admitted. The 
negotiators intended that evidentiary tests other than 
authentication (such as relevance, and materiality) would still 
have to be satisfied in each case.

                      Article 9--Official Records

    Paragraph 1 obliges each Party to furnish the other with 
copies of publicly available records, including documents or 
information in any form, possessed by a government department 
or agency in the Requested State. The term ``government 
departments and agencies'' includes all executive, judicial, 
and legislative units of the Federal, State, and local level in 
each country.
    Paragraph 2 provides that the Requested State may share 
with its treaty partner copies of nonpublic information in 
government files. The obligation under this provision is 
discretionary, and such requests may be denied in whole or in 
part. Moreover, the article states that the Requested State may 
only exercise its discretion to turn over information in its 
files ``to the same extent and under the same conditions'' as 
it would to its own law enforcement or judicial authorities. It 
is intended that the Central Authority of the Requested State, 
in close consultation with the interested law enforcement 
authorities of that State, will determine that extent and what 
those conditions would be.
    The discretionary nature of this provision is necessary 
because government files in each State contain some kinds of 
information that would be available to investigative 
authorities in that State, but that justifiably would be deemed 
inappropriate to release to a foreign government. For example, 
assistance might be deemed inappropriate where the information 
requested would identify or endanger an informant, prejudice 
sources of information needed in future investigations, or 
reveal information that was given to the Requested State in 
return for a promise that it not be divulged. Of course, a 
request could be denied under this clause if the Requested 
State's law bars disclosure of the information.
    The delegations discussed whether this article should serve 
as a basis for exchange of information in tax matters. It was 
the intention of the United States delegation that the United 
States be able to provide assistance under the Treaty for tax 
offenses, as well as to provide information in the custody of 
the Internal Revenue Service for both tax offenses and non-tax 
offenses under circumstances that such information is available 
to U.S. law enforcement authorities. The United States 
delegation was satisfied after discussion that this Treaty is a 
``convention relating to the exchange of tax information'' for 
purposes of Title 26, United States Code, Section 6103(k)(4), 
and the United States would have the discretion to provide tax 
return information to Brazil under this article in appropriate 
cases. \22\
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    \22\ Thus, this treaty, like all of the other U.S. bilateral mutual 
legal assistance treaties, authorizes the Contracting Parties to 
provide tax return information in appropriate circumstances.
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    Paragraph 3 states that documents provided under this 
article may be authenticated by the officials in charge of 
maintaining them through the use of a form appended to the 
Treaty. No further authentication is required. If authenticated 
in this manner, the evidence shall be admissible in evidence in 
the Requesting State. Thus, the Treaty establishes a procedure 
for authenticating official foreign documents that is 
consistent with Rule 902(3) of the Federal Rules of Evidence 
and Rule 44, Federal Rules of Civil Procedure.
    Paragraph 3, similar to Article 8(5), states that documents 
authenticated under this paragraph shall be ``admissible'' but 
it will, of course, be up to the judicial authority presiding 
over the trial to determine whether the evidence should in fact 
be admitted. The evidentiary tests other than authentication 
(such as relevance or materiality) must be established in each 
case.

             Article 10--Testimony in the Requesting State

    This article provides that upon request, the Requested 
State shall invite witnesses who are located in its territory 
and needed in the Requesting State to travel to the Requesting 
State to testify. An appearance in the Requesting State under 
this article is not mandatory, and the invitation may be 
refused by the prospective witness. The Requesting State would 
be expected to pay the expenses of such an appearance pursuant 
to Article 6 of the Treaty, and Article 10(1) provides that the 
witness shall be informed of the amount and kind of expenses 
which the Requesting State will provide in a particular case. 
It is assumed that such expenses would normally include the 
costs of transportation, room, and board. When the witness is 
to appear in the United States, a nominal witness fee would 
also be provided.
    Paragraph 2 provides that the Central Authority of the 
Requesting State may, in its discretion, determine that a 
person who is in the Requesting State pursuant to this article 
shall not be subject to service of process, or be detained or 
subjected to any restriction of personal liberty while he is in 
the Requesting State. The safe conduct is limited to acts or 
convictions which preceded the witness' departure from the 
Requested State. This provision does not prevent the 
prosecution of a person for perjury or any other crime 
committed while in the Requesting State. Since the decision to 
offer such safe conduct may have to be made by the prosecutor 
or the judge responsible for the potential criminal charges, 
not by the Central Authority alone, the Central Authority may 
need to consult with other officials regarding any proposal to 
offer safe conduct under this paragraph. With this fact in 
mind, the paragraph requires that the Central Authority of the 
Requesting State promptly inform the Central Authority of the 
Requested State ``whether such safe conduct shall be 
extended.''
    Paragraph 3 states that the safe conduct guaranteed in this 
article expires seven days after the Central Authority of the 
Requesting State has notified the Central Authority of the 
Requested State that the person's presence is no longer 
required, or when he leaves the territory of the Requesting 
Party and thereafter returns to it. However, the Central 
Authority of the Requesting State may, in its discretion, 
extend the safe conduct up to fifteen days.

               Article 11--Transfer of Persons in Custody

    In some criminal cases, a need arises for the testimony in 
one country of a witness in custody in another country. In some 
instances, foreign countries are willing and able to ``lend'' 
witnesses to the United States Government, provided the 
witnesses would be carefully guarded while in the United States 
and returned to the foreign country at the conclusion of the 
testimony. On occasion, the United States Justice Department 
has arranged for consenting federal inmates in the United 
States to be transported to foreign countries to assist in 
criminal proceedings. \23\
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    \23\ For example, in September, 1986, the United States Justice 
Department and the United States Drug Enforcement Administration 
arranged for four federal prisoners to be transported to the United 
Kingdom to testify for the Crown in Regina v. Dye, Williamson, Ells, 
Davies, Murphy, and Millard, a major narcotics prosecution in ``the Old 
Bailey'' (Central Criminal Court) in London.
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    Paragraph 1 provides an express legal basis for cooperation 
in these matters. It is based on Article 26 of the United 
States-Switzerland Mutual Legal Assistance Treaty, \24\ which 
in turn is based on Article 11 of the European Convention on 
Mutual Assistance in Criminal Matters. \25\
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    \24\ U.S.-Switzerland Mutual Legal Assistance Treaty, supra note 
13, art. 26.
    \25\ See also Title 18, United States Code, Section 3508, which 
provides for the transfer to the United States of witnesses in custody 
in other Sates whose testimony is needed at a federal criminal trial.
---------------------------------------------------------------------------
    Paragraph 2 provides that a person in the custody of the 
Requesting State whose presence in the Requested State is 
sought for purposes of assistance under this Treaty may be 
transferred from the Requesting State to the Requested State if 
the person consents and if the Central Authorities of both 
States agree. This would also cover situations in which a 
person in custody in the United States on a criminal matter has 
sought permission to travel to another country to be present at 
a deposition being taken there in connection with the case. 
\26\
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    \26\ See also United States v. King, 552 F.2d 833 (9th Cir. 1976), 
cert. denied, 430 U.S. 966 (1977), where the defendants insisted on 
traveling to Japan to be present at the deposition of certain witnesses 
in prison there.
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    Paragraph 3 provides express authority for the receiving 
State to maintain such a person in custody throughout the 
person's stay there, unless the sending State specifically 
authorizes release. This paragraph also authorizes the 
receiving State to return the person in custody to the sending 
State, and provides that this return will occur in accordance 
with terms and conditions agreed upon by the Central 
Authorities. The initial transfer of a prisoner under this 
article requires the consent of the person involved and of both 
Central Authorities, but the provision does not require that 
the person consent to be returned to the sending State.
    Once the receiving State has agreed to assist the sending 
State's investigation or proceeding pursuant to this article, 
it would be inappropriate for the receiving State to hold the 
person transferred and require extradition proceedings before 
allowing him to return to the sending State as agreed. 
Therefore, Paragraph (3)(c) contemplates that extradition 
proceedings will not be required before the status quo is 
restored by the return of the person transferred. Paragraph 
(3)(d) states that the person is to receive credit for time 
served while in the custody of the receiving State. This is 
consistent with United States practice in these matters.
    Article 11 does not provide for any specific ``safe 
conduct'' for persons transferred under this article, because 
it is anticipated that the authorities of the two countries 
will deal with such situations on a case-by-case basis. If the 
person in custody is unwilling to be transferred without safe 
conduct, and the Receiving State is unable or unwilling to 
provide satisfactory assurances in this regard, the person is 
free to decline to be transferred.

       Article 12--Location or Identification of Persons or Items

    This article provides for ascertaining the whereabouts in 
the Requested State of persons (such as witnesses, potential 
defendants, or experts) or items if the Requesting State seeks 
such information. This is a standard provision contained in all 
United States mutual legal assistance treaties. The Treaty 
requires only that the Requested State make ``best efforts'' to 
locate the persons or items sought by the Requesting State. The 
extent of such efforts will vary, of course, depending on the 
quality and extent of the information provided by the 
Requesting State concerning the suspected location and last 
known location.
    The obligation to locate persons or items is limited to 
persons or items that are or may be in the territory of the 
Requested State. Thus, the United States would not be obliged 
to attempt to locate persons or items which may be in third 
countries. In all cases, the Requesting State would be expected 
to supply all available information about the last known 
location of the persons or items sought.

                    Article 13--Service of Documents

    This article creates an obligation on the Requested State 
to use its best efforts to effect the service of documents such 
as summons, complaints, subpoenas, or other legal papers 
relating in whole or in part to a Treaty request. Identical 
provisions appear in several U.S. mutual legal assistance 
treaties.
    It is expected that when the United States is the Requested 
State, service under the Treaty will be made by registered mail 
(in the absence of any request by Brazil to follow a specified 
procedure for service) or by the United States Marshal's 
Service in instances in which personal service is requested.
    Paragraph 2 provides that when the documents to be served 
call for the appearance of a person in the Requesting State, 
the documents should be received by the Central Authority of 
the Requested State a reasonable time before the date set for 
any such appearance.
    Paragraph 3 requires that proof of service be returned to 
the Requesting State in the manner specified in the request.

                     Article 14--Search and Seizure

    It is sometimes in the interests of justice for one State 
to ask another to search for, secure, and deliver articles or 
objects needed in the former as evidence or for other purposes. 
United States courts can and do execute such requests under 
Title 28, United States Code, Section 1782, \27\ and Brazil's 
courts have the power to execute such requests. This article 
creates a formal framework for handling such requests.
---------------------------------------------------------------------------
    \27\ See e.g., United States ex Rel. Public Prosecutor of 
Rotterdam, Netherlands v. Van Aalst, Case No 84-52-M-01 (M.D. Fla., 
Orlando Div.) (search warrant issued February 24, 1984).
---------------------------------------------------------------------------
    Article 14 requires that the search and seizure request 
include ``information justifying such action under the laws of 
the Requested State.'' This means that normally a request to 
the United States from Brazil will have to be supported by a 
showing of probable cause for the search. A United States 
request to Brazil would have to satisfy the corresponding 
evidentiary standard there, which is roughly the same.
    Paragraph 2 is designed to ensure that a record is kept of 
articles seized and of articles delivered up under the Treaty. 
This provision effectively requires that, upon request, every 
official who has custody of a seized item shall certify, 
through the use of Form C appended to this Treaty, the 
continuity of custody, the description of the item, and the 
integrity of its condition.
    This paragraph also provides that the certificates 
describing continuity of custody (such as that set forth in 
Form C appended to the Treaty) will be admissible without 
additional authentication at trial in the Requesting State, 
thus relieving the Requesting State of the burden, expense, and 
inconvenience of having to send its law enforcement officers to 
the Requested State to provided authentication and chain of 
custody testimony each time the Requesting State uses evidence 
produced under this article. As in Articles 8(5) and 9(3), the 
injunction that the certificates be admissible without 
additional authentication leaves the trier of fact free to bar 
use of the evidence itself, in spite of the certificate, if 
there is some reason to do so other than authenticity or chain 
of custody.
    Paragraph 3 states that the Requested State may require 
that the Requesting State agree to terms and conditions 
necessary to protect the interests of third parties in the item 
to be transferred. This article is similar to provisions in 
many other United States mutual legal assistance treaties. \28\
---------------------------------------------------------------------------
    \28\ See e.g., U.S.-Argentina Mutual Legal Assistance Treaty, supra 
note 6; U.S.-Bahamas Mutual Legal Assistance Treaty, supra note 20; 
U.S.-Canada Mutual Legal Assistance Treaty, supra note 17; U.S.- U.K. 
Mutual Legal Assistance Treaty Concerning the Cayman Islands, Jul. 3, 
1986; U.S.-Hungary Mutual Legal Assistance Treaty, Dec. 1, 1994; U.S.-
Korea Mutual Legal Assistance Treaty, Nov. 23, 1993; U.S.-Panama Mutual 
Legal Assistance Treaty, Apr. 11, 1991; U.S.-Philippines Mutual Legal 
Assistance Treaty, supra note 6; U.S.-Spain Mutual Legal Assistance 
Treaty, Nov. 20, 1990; U.S.-United Kingdom Mutual Legal Assistance 
Treaty, Jan. 6, 1994
---------------------------------------------------------------------------

                      Article 15--Return of Items

    This article provides that any documents, records, or items 
furnished under the Treaty must be returned to the Requested 
State as soon as possible. This would normally be invoked only 
if the Central Authority of the Requested State specifically 
requests it at the time that the items are delivered to the 
Requesting State. It is anticipated that unless original 
records or articles of significant intrinsic value are 
involved, the Requested State will not usually request return 
of the items, but this is a matter best left to development in 
practice.

            Article 16--Assistance in Forfeiture Proceedings

    A major goal of the Treaty is to enhance the efforts of 
both the United States and Brazil in combating narcotics 
trafficking. One significant strategy in this effort is action 
by authorities in both States to seize and confiscate money, 
property, and other proceeds of drug trafficking.
    This article is similar to a number of United States mutual 
legal assistance treaties, including Article 17 in the U.S.-
Canada Mutual Legal Assistance Treaty and Article 15 of the 
U.S.-Thailand Mutual Legal Assistance Treaty. Paragraph 1 
authorizes the Central Authority of one State to notify the 
other of the existence in the latter's territory of proceeds or 
instrumentalities of offenses that may be forfeitable or 
otherwise subject to seizure. The term ``proceeds or 
instrumentalities'' was intended to include things such as 
money, vessels, or other valuables either used in the crime or 
purchased or obtained as a result of the crime.
    Upon receipt of notice under this article, the Central 
Authority of the State in which the proceeds or 
instrumentalities are located may take whatever action is 
appropriate under its law. For instance, if the assets in 
question are located in the United States and were obtained as 
a result of a fraud in Brazil, they could be seized under 18 
U.S.C. 981 in aid of a prosecution under Title 18, United 
States Code, Section 2314, \29\ or be subject to a temporary 
restraining order in anticipation of a civil action for the 
return of the assets to the lawful owner. Proceeds of a foreign 
kidnapping, robbery, extortion or a fraud by or against a 
foreign bank are civilly and criminally forfeitable in the U.S. 
since these offenses are predicate offenses under U.S. money 
laundering laws. \30\ Thus, it is a violation of United States 
criminal law to launder the proceeds of these foreign fraud or 
theft offenses, when such proceeds are brought into the United 
States.
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    \29\ This statute makes it an offense to transport money or 
valuables in interstate or foreign commerce knowing that they were 
obtained by fraud in the United States or abroad.
    \30\ Title 18, United States Code, Section 1956(c)(7)(B).
---------------------------------------------------------------------------
    If the assets are the proceeds of drug trafficking, it is 
especially likely that the Contracting Parties will be able and 
willing to help one another. Title 18, United States Code, 
Section 981(a)(1)(B), allows for the forfeiture to the United 
States of property ``which represents the proceeds of an 
offense against a foreign nation involving the manufacture, 
importation, sale, or distribution of a controlled substance 
(as such term is defined for the purposes of the Controlled 
Substance Act, Title 21, United States Code, Section 853) 
within whose jurisdiction such offense or activity would be 
punishable by death or imprisonment for a term exceeding one 
year if such act or activity had occurred within the 
jurisdiction of the United States.'' This is consistent with 
the laws in other countries, such as Switzerland and Canada; 
there is a growing trend among nations toward enacting 
legislation of this kind in the battle against narcotics 
trafficking. \31\ The United States delegation expects that 
Article 16 of the Treaty will enable this legislation to be 
even more effective.
---------------------------------------------------------------------------
    \31\ Article 5 of the United Nations Convention Against Illicit 
Traffic in Narcotic Drugs and Psychotropic Substances, calls for the 
States that are party to enact legislation to forfeit illicit drug 
proceeds and to assist one another in such matters. United Nations 
Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic 
Substances, with annex and final act, done at Vienna, Dec. 20, 1988.
---------------------------------------------------------------------------
    Paragraph 2 states that the Parties shall assist one 
another to the extent permitted by their laws in proceedings 
relating to the forfeiture of the proceeds or instrumentalities 
of offenses, to restitution to crime victims, or to the 
collection of fines imposed as sentences in criminal 
convictions. It specifically recognizes that the authorities in 
the Requested State may take immediate action to temporarily 
immobilize the assets pending further proceedings. Thus, if the 
law of the Requested State enables it to seize assets in aid of 
a proceeding in the Requesting State or to enforce a judgment 
of forfeiture levied in the Requesting State, the Treaty 
provides that the Requested State shall do so. The language of 
the article is carefully selected, however, so as not to 
require either State to take any action that would exceed its 
internal legal authority. It does not mandate institution of 
forfeiture proceedings or initiation of temporary 
immobilization in either country against property identified by 
the other if the relevant prosecution authorities do not deem 
it proper to do so. \32\
---------------------------------------------------------------------------
    \32\ In Brazil, unlike the U.S., the law does not currently allow 
for civil forfeiture. However, Brazilian law does permit forfeiture in 
criminal cases, and ordinarily a defendant must be convicted in order 
for Brazil to confiscate the defendant's property.
---------------------------------------------------------------------------
    United States law permits the government to transfer a 
share of certain forfeited property to other countries that 
participate directly or indirectly in the seizure or forfeiture 
of the property. Under regulations promulgated by the Attorney 
General, the amount transferred generally reflects the 
contribution of the foreign government in law enforcement 
activity which led to the seizure and forfeiture of the 
property. The law requires that the transfer be authorized by 
an international agreement between the United States and the 
foreign country, and be approved by the Secretary of State. 
\33\
---------------------------------------------------------------------------
    \33\ See Title 18, United States Code, Section 981 (i)(1).
---------------------------------------------------------------------------
    Paragraph 3 is consistent with this framework, and will 
enable a Contracting Party having custody over proceeds or 
instrumentalities of offenses to transfer forfeited assets, or 
the proceeds of the sale of such assets, to the other 
Contracting Party, at the former's discretion and to the extent 
permitted by their respective laws.

             Article 17--Compatibility with Other Treaties

    This article states that assistance and procedures provided 
by this treaty shall not prevent either Party from granting 
assistance to the other under other applicable international 
agreements. Article 17 also provides that the Treaty shall not 
prevent recourse to any assistance available under the internal 
laws of either country, or pursuant to any applicable bilateral 
agreement or practice. Thus, the Treaty would leave the 
provisions of United States and Brazilian law on letters 
rogatory completely undisturbed, and would not alter any pre-
existing executive agreements concerning investigative 
assistance. \34\
---------------------------------------------------------------------------
    \34\ See E.g., U.S.-Brazil Agreement on Cooperation in the Field of 
Control of Illicit Traffic of Drugs, with Annex, July 19, 1983, TIAS 
10756; U.S.-Brazil Mutual Cooperation Agreement for Reducing Demand, 
Preventing Illicit Use and Combating Illicit Production and Traffic of 
Drugs, September 3, 1986, TIAS 11382.
---------------------------------------------------------------------------

                        Article 18--Consultation

    Experience has shown that as the parties to a treaty of 
this kind work together over the years, they become aware of 
various practical ways to make the treaty more effective and 
their own efforts more efficient. This article anticipates that 
the Contracting Parties will share those ideas with one 
another, and encourages them to agree on the implementation of 
such measures. Practical measures of this kind might include 
methods of keeping each other informed of the progress of 
investigations and cases in which treaty assistance was 
utilized, or the use of the Treaty to obtain evidence that 
otherwise might be sought via methods less acceptable to the 
Requested State. Very similar provisions are contained in 
recent United States mutual legal assistance treaties. \35\ It 
is anticipated that the Central Authorities will conduct annual 
consultations pursuant to this paragraph.
---------------------------------------------------------------------------
    \35\ See, e.g., U.S.-Philippines Mutual Legal Assistance Treaty, 
supra note 6, art. 18; U.S.-Canada Mutual Legal Assistance Treaty, 
supra note 17, art. XVIII; U.S.-U.K. Mutual Legal Assistance Treaty 
Concerning the Cayman Islands, supra note 28, art. 18; U.S.-Argentina 
Mutual Legal Assistance Treaty, supra note 6, art. 18.
---------------------------------------------------------------------------

                        Article 19--Application

    Article 19 provides that the Treaty shall apply to any 
request presented pursuant to it after it enters into force, 
even if the relevant acts or omissions occurred before the date 
on which the Treaty entered into force. Provisions of this kind 
are common in law enforcement agreements, and similar 
provisions are found in most of the United States' extradition 
treaties.

      Article 20--Ratification, Entry Into Force, and Termination

    Paragraph 1 contains standard provisions on the procedure 
for ratification and the exchange of the instruments of 
ratification.
    Paragraph 2 provides that the Treaty shall enter into force 
immediately upon the exchange of instruments of ratification.
    Paragraph 3 states that the Parties may amend this Treaty 
by mutual agreement, and any such amendment shall enter into 
force upon a written exchange of notifications between the 
Parties, through the diplomatic channel, that all domestic 
requirements for its entry into force have been completed.
    Paragraph 4 contains standard provisions concerning the 
procedure for terminating the Treaty. Termination shall take 
effect six months after the date of written notification. 
Similar termination provisions are included in other United 
States mutual legal assistance treaties.

 Technical Analysis of the Treaty Between the United States of America 
 and the Czech Republic on Mutual Legal Assistance in Criminal Matters 
                        Signed February 4, 1998

    On February 4, 1998, the Attorney General of the United 
States and the Ambassador of the Czech Republic signed a Treaty 
on Mutual Legal Assistance in Criminal Matters (``the 
Treaty''). In recent years, the United States has signed 
similar treaties with other countries as part of a highly 
successful effort to modernize the legal tools available to law 
enforcement authorities in need of foreign evidence for use in 
criminal cases.
    The Treaty with the Czech Republic is a major advance in 
the formal law enforcement relationship between the two 
countries, and is expected to be a valuable weapon for the 
United States in its efforts to combat transnational terrorism, 
international drug trafficking, and Russian organized crime.
    It is anticipated that the Treaty will be implemented in 
the United States pursuant to the procedural framework provided 
by Title 28, United States Code, Section 1782. The Czech 
delegation advised that under Czech jurisprudence, the terms of 
the Treaty would take precedence over silence in Czech domestic 
law, and, in case of a conflict between the Treaty and future 
Czech domestic law, the Treaty would control.
    The following technical analysis of the Treaty was prepared 
by the Office of International Affairs, United States 
Department of Justice, and the Office of the Legal Adviser, 
United States Department of State, based upon the negotiating 
notes. The technical analysis includes a discussion of U.S. law 
and relevant practice as of the date of its preparation, which 
are, of course, subject to change. Foreign law discussions 
reflect the current state of that law, to the best of the 
drafters' knowledge.

                     Article 1--Scope of Assistance

    Paragraph 1 provides for assistance ``for criminal 
proceedings, including investigations to verify the commission 
of offenses, to gather evidence of offenses, and to prosecute 
offenses, the punishment of which, at the time of the request 
for assistance, would fall within the jurisdiction of the 
judicial authorities of the Requesting State.'' By this phrase 
the negotiators specifically agreed to provide treaty 
assistance at any stage of a criminal matter. \1\  The Czech 
negotiators explained that under the Czech law, there exists an 
investigative stage both before and after indictment. This 
phrase will allow the Czech authorities to secure assistance at 
both of these investigative stages, as well as later during the 
prosecution stage. For the United States, this includes not 
only police-to-police cooperation before a crime is committed, 
a grand jury investigation, a criminal trial, or a sentencing 
proceeding, but also an administrative inquiry by an agency 
with investigative authority for the purpose of determining 
whether to refer the matter to the Department of Justice for 
criminal prosecution. \2\
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    \1\ The requirement that assistance be provided under the Treaty at 
the pre-indictment stage is critical to the U.S., as our investigators 
and prosecutors often need to obtain evidence from foreign countries in 
order to determine whether or not to file criminal charges. This 
obligation is a reciprocal one; the U.S. must assist the Czech Republic 
under the Treaty in connection with investigations prior to charges 
being filed in Czech Republic. Prior to the 1996 amendments of Title 
28, United States Code, Section 1782, some U.S. courts interpreted that 
section to require that assistance be provided in criminal matters only 
if formal charges have already been filed abroad, or are ``imminent,'' 
or ``very likely.'' McCarthy, ``A Proposed Uniform Standard for U.S. 
Courts in Granting Requests for International Judicial Assistance,'' 15 
Fordham Int'l Law J. 772 (1991). The 1996 amendment to the statute 
eliminates this problem, however, by amending subsec. (a) to state 
``including criminal investigation conducted before formal 
accusation.'' In any event, this Treaty was intentionally written to 
cover criminal investigations that have just begun as well as those 
that are nearly completed; it draws no distinction between cases in 
which charges are already pending, ``imminent,'' ``very likely,'' or 
``very likely very soon.'' Thus, U.S. courts should execute requests 
under the Treaty without examining such factors.
    \2\ One United States court has interpreted Title 28, United States 
Code, Section 1782, as permitting the execution of a request for 
assistance from a foreign country only if the evidence sought is for 
use in proceedings before an adjudicatory ``tribunal'' in the foreign 
country. In Re Letters Rogatory Issued by the Director of Inspection of 
the Gov't of India, 385 F.2d 1017 (2d Cir. 1967); Fonseca v. 
Blumenthal, 620 F.2d 322 (2d Cir. 1980). This rule poses an unnecessary 
obstacle to the execution of requests concerning matters which are at 
the investigatory stage, or which are customarily handled by 
administrative officials in the Requesting State. Since this paragraph 
of the Treaty specifically permits requests to be made in connection 
with matters not within the jurisdiction of an adjudicatory 
``tribunal'' in the Requesting State, this paragraph accords the courts 
broader authority to execute requests than does Title 28, United States 
Code, Section 1782, as interpreted in the India and Fonseca cases.
---------------------------------------------------------------------------
    Paragraph 2 lists the types of assistance specifically 
considered by the negotiators. Most of the items are described 
in greater detail in subsequent articles. The list is not 
exhaustive, as indicated by the phrase ``assistance shall 
include'' in the paragraph's chapeau and reinforced by the 
phrase in item (i), which states that assistance shall include 
``providing any other assistance consistent with the laws of 
the Requested State.'' Paragraph 3 specifies that the principle 
of dual criminality is generally inapplicable. Dual criminality 
obligates the Requested State to provide assistance only when 
the criminal conduct committed in the Requesting State would 
also constitute a crime if committed in the Requested State. In 
other words, the obligation to provide assistance upon request 
arises irrespective of whether the offense for which assistance 
is requested is a crime in the Requested State. However, the 
paragraph lists an exception to the rule: where execution of 
the request would require a court order, the Requested State 
may, in fact, decline to provide assistance in the absence of 
dual criminality. Even so, the paragraph obligates the 
Requested State to ``make every effort to approve a request for 
assistance requiring such a court order'' and to grant such a 
request if, using the standard of ``reasonable suspicion,'' the 
conduct described would also constitute a crime under the laws 
of the Requested State. The delegations anticipate that only on 
extremely rare occasions will the dual criminality requirement 
prevent the granting of requested assistance.
    Paragraph 4 contains a standard provision in United States 
mutual legal assistance treaties \3\ which states that the 
Treaty is intended solely for government-to-government mutual 
legal assistance. The Treaty is not intended to provide to 
private persons a means of evidence gathering, or to extend 
generally to civil matters. Private litigants in the United 
States may continue to obtain evidence from the Czech Republic 
by letters rogatory, an avenue of international assistance that 
the Treaty leaves undisturbed. Similarly, the paragraph 
provides that the Treaty is not intended to create any right in 
a private person to suppress or exclude evidence provided 
pursuant to the Treaty, or to impede the execution of a 
request.
---------------------------------------------------------------------------
    \3\ See United States v. Johnpoll, 739 F.2d 702 (2d Cir. 1984), 
cert. denied, 469 U.S. 1075 (1984).
---------------------------------------------------------------------------

                     Article 2--Central Authorities

    Paragraph 1 requires that each Contracting State shall 
``seek and obtain assistance'' under the Treaty through their 
respective Central Authorities.
    The Central Authority for the Requesting State will 
exercise discretion as to the form and content of requests, and 
the number and priority of requests. The Central Authority of 
the Requested State is also responsible for receiving each 
request, transmitting it to the appropriate federal or state 
agency, court, or other authority for execution, and ensuring 
that a timely response is made.
    The Attorney General has delegated the authority to handle 
the duties of Central Authority under mutual assistance 
treaties to the Assistant Attorney General in charge of the 
Criminal Division. \4\ The Central Authority for the Czech 
Republic will be the Office of the Prosecutor General and the 
Ministry of Justice. \5\ This dual Central Authority 
arrangement reflects the importance and independence of the 
Office of the Prosecutor General in the Czech Republic criminal 
justice system. Both the Czech Constitution and the Czech 
Criminal Code designate distinct and separate responsibilities 
and duties to the Office of the Prosecutor General and the 
Ministry of Justice. The Prosecutor's Office is responsible for 
handling requests to and from foreign authorities for 
assistance in criminal matters at the investigation stage, 
while the Ministry of Justice is responsible for handling 
requests to and from foreign authorities for assistance in 
criminal matters at the prosecution stage. The Czech delegation 
informed the United States delegation that, in practice, the 
U.S. Central Authority could send all requests to the Office of 
the Prosecutor General since most foreign requests fall within 
the investigative stage. If the request falls under the 
jurisdiction of the Czech Ministry of Justice, however, the 
Office of the Prosecutor General will promptly forward the 
request to the Ministry of Justice for execution.
---------------------------------------------------------------------------
    \4\ 28 C.F.R. Sec.  0.64-1. The Assistant Attorney General for the 
Criminal Division has in turn delegated this authority to the Deputy 
Assistant Attorneys General and the Director of the Criminal Division's 
Office of International Affairs, in accordance with the regulation. 
Directive No. 81, 45 Fed. Reg. 79,758 (1980), as corrected at 48 Fed. 
Reg. 54,595 (1983). That delegation was subsequently extended to the 
Deputy Directors of the Office of International Affairs. 59 Fed. Reg. 
42,160 (1994).
    \5\ Similarly, Article 2(2) of the U.S.-Hungary Mutual Legal 
Assistance Treaty, signed Dec. 1, 1994, entered into force March 18, 
1997 (------ UST ------), provides that the Hungarian Minister of 
Justice and Office of the Chief Public Prosecutor will serve as a dual 
Central Authority.
---------------------------------------------------------------------------
    Paragraph 2 provides that the U.S. Central Authority will 
``make'' requests on behalf of federal, state, and local 
``prosecutors, investigators with criminal law enforcement 
jurisdiction, and agencies and entities with specific statutory 
or regulatory authority to refer matters for criminal 
prosecution'' in the United States. The Czech Central Authority 
will make requests on behalf of Czech prosecutors and courts.
    Paragraph 3 specifies that the Central Authority for the 
Requesting State shall use its ``best efforts'' not to make a 
request if, in its view: (a) the request is based on offenses 
that do not have serious consequences; or (b) the extent of the 
assistance to be requested is unreasonable in view of the 
sentence expected upon conviction. This provision is intended 
to give the Central Authorities a firm basis on which to refuse 
to submit a request on behalf of a competent authority because 
of the insignificance or inappropriateness of the request.
    Paragraph 4 states that the Central Authorities shall 
communicate directly with one another for the purposes of the 
Treaty. It is anticipated that such communication will be 
accomplished by telephone, telefax, or Interpol channels, or 
any other means, at the option of the Central Authorities 
themselves.

                    Article 3--Denial of Assistance

    This article specifies the limited classes of cases in 
which assistance may be denied under the Treaty.
    Paragraph (1)(a) permits the Requested State to deny a 
request if it relates to an offense under military law that 
would not be an offense under ordinary criminal law applicable 
generally. Similar provisions appear in many other U.S. mutual 
legal assistance treaties.
    During negotiations, the Czech delegation informed that 
they do not have a separate military code; rather, military law 
is covered in a section of the single Czech criminal code 
dealing with ``ordinary criminal law.'' The delegations 
understand this provision to provide that a Requested State 
will have discretion to deny a request under this provision 
only when there exists a certain criminal conduct that would be 
an offense under military law, but would not be an offense 
under ordinary law. For example, showing disrespect to a senior 
military officer would be a purely military offense and, thus, 
a basis on which the Requested State would have discretion to 
deny assistance. On the other hand, if a military officer 
murders another military officer, this would be a military 
offense as well as an offense under ordinary law and, thus, the 
Requested State would not have discretion to deny assistance 
under this provision. As a practical matter, the negotiating 
delegations noted that they anticipate that this provision will 
rarely, if ever, be used as a basis for denial of a request.
    Paragraph (1)(b) permits denial of a request if it involves 
a political offense. It is anticipated that the Central 
Authorities will employ jurisprudence similar to that used in 
the extradition treaties for determining what is a ``political 
offense.'' These restrictions are similar to those found in 
other mutual legal assistance treaties.
    Paragraph 1(c) permits the Central Authority of the 
Requested State to deny a request if execution would prejudice 
the sovereignty, security, order public, or similar essential 
interests of that State. The negotiators anticipate that this 
provision will be invoked in the rarest and most extreme 
circumstances. The Czech delegation could not think of a 
request within recent memory denied on the basis of sovereignty 
or security. The term ``order public'' appears in other mutual 
legal assistance treaties but is not commonly used by the 
United States; however, the Czech delegation was more 
comfortable with the term, commonly used in European 
conventions, and intended that it cover matters that affect the 
social fabric of the nation, such as, for example, requiring 
(or denying a request to require) a witness of a certain 
religion to take an oath that is contrary to the practice of 
that religion. The phrase ``similar essential interests'' is 
intended to convey a concept of substantial national 
importance. In the United States, because the decision to deny 
assistance lies with the Central Authority, the Attorney 
General will work closely with the Department of State and 
other relevant agencies in determining whether to execute a 
request that involves ``sovereignty, security, order public, or 
similar essential interests.''
    Paragraph (1)(d) permits the denial of a request if it is 
not made in conformity with the Treaty.
    Paragraph 2 is similar to Article 3(2) of the U.S.-
Switzerland Mutual Legal Assistance Treaty, \6\ and obliges the 
Requested State to consider imposing appropriate conditions on 
its assistance in lieu of denying a request outright pursuant 
to the first paragraph of the article. For example, a 
Contracting Party might request information that could be used 
either in a routine criminal case (which would be within the 
scope of the Treaty) or in a politically motivated prosecution 
(which would be subject to refusal). This paragraph would 
permit the Requested State to provide the information on the 
condition that it be used only in the routine criminal case. 
Naturally, the Requested State would notify the Requesting 
State of any proposed conditions before actually delivering the 
evidence in question, thereby according the Requesting State an 
opportunity to indicate whether it is willing to accept the 
evidence subject to the conditions. If the Requesting State 
does accept the evidence subject to the conditions, it must 
honor the conditions.
---------------------------------------------------------------------------
    \6\ U.S.-Switzerland Mutual Legal Assistance Treaty, May 25, 1973, 
art. 26, 27 UST 2019, TIAS No. 8302, 1052 UNTS 61.
---------------------------------------------------------------------------
    Paragraph 3 effectively requires that the Central Authority 
of the Requested State promptly notify the Central Authority of 
the Requesting State of the basis for any denial of assistance. 
This ensures that, when a request is only partly executed, the 
Requested State will provide some explanation for not providing 
all of the information or evidence sought. This should avoid 
misunderstandings, and enable the Requesting State to better 
prepare its requests in the future.

           Article 4--Form, Content, and Language of Requests

    Paragraph 1 requires that requests be in writing, except 
that the Central Authority of the Requested State may accept a 
request in another form in ``urgent situations.'' A request in 
another form must be confirmed in writing within ten days 
unless the Central Authority of the Requested State agrees 
otherwise. Paragraph 1 also requires that the Treaty request, 
including any attachments, be in the language of the Requested 
State, unless otherwise agreed. The last sentence of Paragraph 
1 states that the Requested States has no obligation to 
translate a response to a request, including any attachments.
    Paragraph 2 lists the four kinds of information deemed 
crucial to the efficient operation of the Treaty which must be 
included in each request. Paragraph 3 outlines kinds of 
information that are important but not always crucial, and 
should be provided ``to the extent necessary and possible.'' In 
keeping with the intention of the Parties that requests be as 
simple and straightforward as possible, there is no requirement 
under the Treaty that a request be legalized or certified in 
any particular manner.

                    Article 5--Execution of Requests

    Paragraph 1 requires each Central Authority promptly to 
execute requests. If the Central Authority is not competent to 
execute the request, it must promptly transmit the request to a 
competent authority for execution.
    For the Czech Republic, the Central Authority will 
determine whether (1) the request complies with the terms of 
the Treaty, and (2) its execution would prejudice the 
sovereignty, security, or other essential interests of the 
Czech Republic. If the request merits execution, the Central 
Authority will transmit the request to an appropriate 
department within the Office of the Prosecutor General or the 
Ministry of Justice for that purpose. The procedure is similar 
for the United States, except the United States Central 
Authority normally will transmit the request to federal 
investigators, prosecutors, or agencies for execution. The 
United States Central Authority also may transmit a request to 
state authorities in circumstances it deems appropriate.
    Paragraph 1 further requires the competent authorities of 
the Requested State, including courts, shall do ``everything in 
their power'' to execute the requests. This sentence also 
specifically authorizes and requires a Court of the Requested 
State to take such action as is necessary and within its power 
to execute the request. In the Czech Republic, courts, as well 
as public prosecutors, are empowered under Czech law to issue 
orders, including subpoenas and search warrants, that are 
necessary to execute the request. In the Czech Republic, 
execution of requests will be almost exclusively within the 
province of the Office of the Prosecutor General, Ministry of 
Justice, and the courts, whereas in the United States, 
execution can be entrusted to any competent authority in any 
branch of government, federal or state. This provision is not 
intended or understood to authorize the use of the grand jury 
in the United States for the collection of evidence pursuant to 
a request from the Czech Republic. Rather, it is anticipated 
that when a request from the Czech Republic requires compulsory 
process for execution, the United States Department of Justice 
would ask a federal court to issue the necessary process under 
Title 28, United States Code, Section 1782, and the provisions 
of the Treaty. \7\
---------------------------------------------------------------------------
    \7\ This paragraph of the Treaty specifically authorizes United 
States courts to use all of their powers to issue subpoenas and other 
process to satisfy a request under the Treaty.
---------------------------------------------------------------------------
    Paragraph 2 reconfirms that, when necessary, the Central 
Authority of the Requested State shall arrange for requests 
from the Requesting State to be presented to the appropriate 
authority in the Requested State for execution. In practice, 
the Central Authority for the United States will transmit the 
request with instructions for execution to an investigative or 
regulatory agency, the office of a prosecutor, or another 
governmental entity. If execution requires the participation of 
a court, the Central Authority will select an appropriate 
representative, generally a federal prosecutor, to present the 
matter to a court. Thereafter, the prosecutor will represent 
the United States, acting to fulfill its obligations to the 
Czech Republic under the Treaty by executing the request. Upon 
receiving the court's appointment as a commissioner, the 
prosecutor/commissioner will act as the court's agent in 
fulfilling the court's responsibility to do ``everything in 
[its] power'' to execute the request. In short, the prosecutor 
may only seek permission from a court to exercise the court's 
authority in using compulsory measures if he receives 
permission from the court to do so.
    The situation with respect to the Czech Republic is 
different. The U.S. Central Authority will transmit all 
requests to either the Czech Republic Office of the Prosecutor 
General or the Ministry of Justice. If the case is in the 
investigative stage, the Office of the Prosecutor General will 
assign the request to an appropriate department within that 
office. Public prosecutors in the Czech Republic have authority 
to order compulsory process, including, but not limited to, 
requiring a witness to appear to provide testimony, issuing 
subpoenas to compel the production of documents or other 
evidence, and ordering a search and seizure. The exercise of 
this authority by Czech prosecutors does not require the 
consent of a court. In other words, unlike in the United 
States, a Czech prosecutor may execute a foreign request 
seeking compulsory process without the assistance of the Czech 
courts.
    If the request to the Czech Republic relates to an indicted 
case, the Office of the Prosecutor General of the Czech 
Republic will transmit the request to the Ministry of Justice 
for forwarding to an appropriate court with general advice 
regarding the Czech Republic's treaty obligation and the 
general evidentiary and procedural requirements of the United 
States.
    Paragraph 3 is inspired by Article 5(5) of the U.S.-
Jamaican Mutual Legal Assistance Treaty \8\, and provides, that 
``[a] request shall be executed in accordance with the laws of 
the Requested State except to the extent that this Treaty 
provides otherwise.'' Thus, the method of executing a request 
for assistance under the Treaty must be in accordance with the 
Requested State's internal laws absent specific contrary 
procedures in the Treaty itself. Neither State is expected to 
take any action pursuant to a treaty request which would be 
prohibited under its internal laws. For the United States, the 
Treaty is intended to be self-executing; no new or additional 
legislation will be needed to carry out the obligations 
undertaken.
---------------------------------------------------------------------------
    \8\ U.S.-Jamaica Mutual Legal Assistance Treaty, July 7, 1989.
---------------------------------------------------------------------------
    The same paragraph requires that procedures specified in 
the request shall be followed in the execution of the request 
except to the extent that those procedures cannot lawfully be 
followed in the Requested State. This provision is necessary 
for two reasons.
    First, there are significant differences between the 
procedures which must be followed by United States and Czech 
Republic authorities in collecting evidence in order to assure 
the admissibility of that evidence at trial. For instance, 
United States law permits documentary evidence taken abroad to 
be admitted in evidence if the evidence is duly certified and 
the defendant has been given fair opportunity to test its 
authenticity. \9\ The law of the Czech Republic currenontains 
no similar provision. Thus, documents assembled in the Czech 
Republic in strict conformity with Czech procedures on evidence 
might not be admissible in United States courts. Similarly, 
United States courts utilize procedural techniques such as 
videotape depositions to enhance the reliability of evidence 
taken abroad, and some of these techniques, while not 
forbidden, are not used in the Czech Republic.
---------------------------------------------------------------------------
    \9\ Title 18, United States Code, Section 3505.
---------------------------------------------------------------------------
    Second, the evidence in question could be needed for 
subjection to forensic examination, and sometimes the 
procedures which must be followed to enhance the scientific 
accuracy of such tests do not coincide with those utilized in 
assembling evidence for admission into evidence at trial. The 
value of such forensic examinations could be significantly 
lessened--and the Requesting State's investigation could be 
retarded--if the Requested State were to insist unnecessarily 
on handling the evidence in a manner usually reserved for 
evidence to be presented to its own courts.
    Paragraph 4 states that a request for assistance need not 
be executed immediately when the Central Authority of the 
Requested State determines that execution would interfere with 
an ongoing investigation or legal proceeding in the Requested 
State. The Central Authority of the Requested State may, in its 
discretion, take such preliminary action as deemed advisable to 
obtain or preserve evidence that might otherwise be lost before 
the conclusion of the investigation or legal proceedings in 
that State. The paragraph also allows the Requested State to 
provide the information sought to the Requesting State subject 
to conditions needed to avoid interference with the Requested 
State's proceedings.
    It is anticipated that some United States requests for 
assistance may contain information which under our law must be 
kept confidential. For example, it may be necessary to set out 
information that is ordinarily protected by Rule 6(e), Federal 
Rules of Criminal Procedure, in the course of an explanation of 
``the nature and stage of the proceeding'' as required by 
Article 4(2)(b). Therefore, Paragraph 5 of Article 5 enables 
the Requesting State to call upon the Requested State to keep 
the information in the request confidential. \10\ If the 
Requested State canxecute the request without disclosing the 
information in question (as might be the case if execution 
requires a public judicial proceeding in the Requested State), 
or if for some other reason this confidentiality cannot be 
assured, the Treaty obliges the Requested State to so indicate, 
thereby giving the Requesting State an opportunity to withdraw 
the request rather than risk jeopardizing an investigation or 
proceeding by public disclosure of the information.
---------------------------------------------------------------------------
    \10\ This provision is similar to language in other United States 
mutual legal assistance treaties. See e.g., U.S.-Mexico Mutual Legal 
Assistance Treaty, Dec. 9, 1987, art. 4(5); U.S.-Canada Mutual Legal 
Assistance Treaty, Mar. 18, 1985; art. 6(5), U.S.-Italy Mutual Legal 
Assistance Treaty, Nov. 9, 1982, art. 8(2); U.S.-Philippines Mutual 
Legal Assistance Treaty, Nov. 13, 1994, art. 5(5).
---------------------------------------------------------------------------
    Paragraph 6 states that the Central Authority of the 
Requested State shall respond to reasonable inquiries by the 
Requesting State concerning progress of its request. This is to 
encourage open communication between the Central Authorities in 
monitoring the status of specific requests.
    Paragraph 7 requires that the Central Authority of the 
Requested State promptly notify the Central Authority of the 
Requesting State of the outcome of the execution of a request. 
If the assistance sought is not provided, the Central Authority 
of the Requested State must also explain the basis for the 
outcome to the Central Authority of the Requesting State. For 
example, if the evidence sought could not be located, the 
Central Authority of the Requested State would report that fact 
to the Central Authority of the Requesting State.

                            Article 6--Costs

    This article obligates the Requested State to pay all costs 
``relating to'' or ordinarily associated with the execution of 
a request, with the exception of those enumerated in the 
article: (1) the fees of experts; (2) the costs of 
interpretation, translation, and transcription; and (3) the 
allowances and expenses related to travel of persons traveling 
outside the local judicial district in the Requested State for 
the convenience of the Requesting State or pursuant to Articles 
11, 12, and 13.
    Costs ``relating to'' execution means the costs normally 
incurred in transmitting a request to the executing authority, 
notifying witnesses and arranging for their appearances, 
producing copies of the evidence, conducting a proceeding to 
compel execution of the request, etc. The negotiators agreed 
that costs ``relating to'' execution to be borne by the 
Requested State do not include expenses associated with the 
travel of investigators, prosecutors, counsel for the defense, 
or judicial authorities to, for example, question a witness or 
take a deposition in the Requested State pursuant to Article 
9(3), or travel in connection with Articles 11, 12, and 13.
    Paragraph 2 of this article provides that if it becomes 
apparent during the execution of a request that complete 
execution of a request would require extraordinary expenses, 
then the Central Authorities shall consult to determine the 
terms and conditions under which execution may continue.

                     Article 7--Limitations on Use

    Article 7 states that the Central Authority of the 
Requested State may require that the Requesting State not use 
any information or evidence obtained under this Treaty other 
than in the proceeding described in the request without the 
prior consent of the Central Authority of the Requested State.
    Article 7 states that the Central Authority of the 
Requested State may require that information provided under the 
Treaty not be used for any purpose other than that stated in 
the request without the prior consent of the Requested State. 
If such confidentiality is requested, the Requesting State must 
comply with the conditions. It will be recalled that Article 
4(2)(d) states that the Requesting State must specify the 
purpose for which the information or evidence sought under the 
Treaty is needed.
    It is not anticipated that the Central Authority of the 
Requested State will routinely request use limitations under 
this article. Rather, it is expected that such limitations will 
be requested sparingly, only when there is good reason to 
restrict the utilization of the evidence.

                  Article 8--Alteration of Conditions

    Paragraph 1 states that nothing in Article 8 shall preclude 
the use or disclosure of information to the extent that there 
is an obligation to do so under the Constitution of the 
Requesting State. Any such proposed disclosure shall be 
notified by the Requesting State to the Requested State in 
advance. If the United States Government were to receive 
evidence under the Treaty that seems to be exculpatory to the 
defendant in another case, the United States might be obliged 
to share the evidence with the defendant in the second case. 
\11\
---------------------------------------------------------------------------
    \11\ See Brady v. Maryland, 373 U.S. 83 (1963).
---------------------------------------------------------------------------
    Paragraph 1 further requires that the Requested State use 
its ``best efforts'' to permit modification of a request for 
the purpose of disclosure. This ``best efforts'' language was 
used because the purpose of the Treaty is the production of 
evidence for use at trial, and that purpose would be frustrated 
if the Requested State could routinely permit the Requesting 
State to see valuable evidence, but impose confidentiality 
restrictions which prevent the Requesting State from using it. 
In fact, where the condition is imposed pursuant to Article 8, 
the disclosure shall be allowed unless prohibited by the law of 
the Requested State.
    Paragraph 2 states that once information or evidence 
obtained under the Treaty has been revealed to the public in 
accordance with Paragraph 1, the Requesting State is free to 
use the evidence for any purpose. Once evidence obtained under 
the Treaty has been revealed to the public in a trial, that 
information effectively becomes part of the public domain, and 
is likely to become a matter of common knowledge, perhaps even 
be described in the press. The negotiators noted that once this 
has occurred, it is practically impossible for the Central 
Authority of the Requesting Party to block the use of that 
information by third parties.
    The negotiators expect the good faith protection of 
confidentiality up to the point that the evidence is used in 
the prosecution of the offense for which it was provided; as a 
result, some previously confidential evidence may become public 
when introduced as evidence at trial or otherwise disclosed as 
part of related judicial proceedings (e.g., for the United 
States, as part of the plea or sentencing process).

               Article 9--Evidence in the Requested State

    Paragraph 1 states that a person in the Requested State 
from whom evidence is sought shall be compelled, if necessary, 
to appear and either testify or provide a statement, or produce 
items, including documents, records, or articles of evidence. 
The compulsion contemplated by this article can be accomplished 
by subpoena or any other means available under the law of the 
Requested State.
    In the United States, a prosecutor asks a U.S. court to 
appoint him as a commissioner empowering him to execute 
subpoenas on behalf of the foreign authority. The procedure in 
the United States as described is used regardless of whether 
the request concerns a matter at the investigative stage or a 
case that has been indicted. In the Czech Republic, the 
authority of the public prosecutor to issue subpoenas and to 
use other compulsory measures exists independently of the 
courts. Therefore, in the Czech Republic, where the request 
concerns a matter at the investigative stage and is handled by 
the Office of the Prosecutor General, the public prosecutor may 
use his power to issue subpoenas to compel the production of 
documents or other evidence on behalf of the foreign authority. 
Where the request concerns an indicted case and is handled by a 
court, the court uses its power to issue subpoenas to compel 
the production of documents or other evidence on behalf of the 
foreign authority.
    The criminal laws in both States contain provisions that 
sanction the production of false evidence. The second sentence 
of Article 9(1) explicitly states that the criminal laws in the 
Requested State shall apply in situations where a person, other 
than an accused, in that State provides false evidence in 
execution of a request. The negotiators expect that were any 
falsehood made in execution of a request, the Requesting State 
could ask the Requested State to prosecute for perjury and 
provide the Requested State with the information or evidence 
needed to prove the falsehood. The Czech delegation advised 
that Section 175 of the Czech Penal Code provides that a person 
who provides false statements to a court, prosecutor, police, 
or investigating commission of the Czech Parliament may be 
subject to criminal punishment.
    Paragraph 2 requires that, upon request, the Requested 
State shall furnish information in advance about the date and 
place of the taking of testimony or evidence.
    Paragraph 3 provides that any persons specified in the 
request, including the defendant and his counsel in criminal 
cases, shall be permitted by the Requested State to be present 
and pose questions during the taking of testimony under this 
article. The Czech negotiators assured the U.S. delegation that 
a stenographer could be present at depositions in the Czech 
Republic. The presence of a stenographer is generally critical 
to preserve testimony of witnesses inasmuch as the United 
States practice is to introduce into evidence a verbatim 
transcript of out-of-court testimony rather than a summary or 
abbreviated form of the testimony as is the practice in civil 
law jurisdictions. The United States practice is intended, 
among other things, to allow the trier of fact to receive 
testimony, to the extent possible, as if the witnesses were 
present at the United States court proceeding.
    Paragraph 4 does require that if a witness attempts to 
assert a privilege that is unique to the Requesting State, the 
Requested State will take the desired evidence and turn it over 
to the Requesting State along with notice that it was obtained 
over a claim of privilege. The applicability of the privilege 
can then be determined in the Requesting State, where the scope 
of the privilege and the legislative and policy reasons 
underlying the privilege are best understood. A similar 
provision appears in many of our recent mutual legal assistance 
treaties. \12\
---------------------------------------------------------------------------
    \12\ See e.g., U.S.-Netherlands Mutual Legal Assistance Treaty, 
June 12, 1981, art. 5(1), TIAS No. 10734, 1359 UNTS 209; U.S.-Bahamas 
Mutual Legal Assistance Treaty, June 12 & Aug. 18, 1987, art. 9(2); 
U.S.-Mexico Mutual Legal Assistance Treaty, supra note 10, art. 7(2); 
U.S.-Philippines Mutual Legal Assistance Treaty, supra note 10, art. 
8(4).
---------------------------------------------------------------------------
    Article 9(5) is primarily for the benefit of the United 
States. The United States evidentiary system requires that 
evidence that is to be used as proof in a legal proceeding be 
authenticated as a precondition to admissibility. This 
paragraph provides that evidence produced in the Requested 
State pursuant to Article 9 may be authenticated by an 
``attestation.'' Although the provision is sufficiently broad 
to include the authentication of ``[e]vidence produced . . . 
pursuant to this Article,'' the negotiators focused on and were 
primarily concerned with business records. In order to ensure 
the United States that business records provided by the Czech 
Republic pursuant to the Treaty could be authenticated in a 
manner consistent with existing U.S. law, the negotiators 
crafted Form A to track the language of Title 18, United States 
Code, Section 3505, the foreign business records authentication 
statute. If the Czech authorities properly complete, sign, and 
attach Form A to executed documents, or submit Form B 
certifying the absence or non-existence of business records, a 
U.S. judge may admit the records into evidence without the 
appearance at trial of a witness. The admissibility provided by 
this paragraph provides for an exception to the hearsay rule; 
however, admissibility extends only to authenticity and not to 
relevance, materiality, etc., of the evidence; whether the 
evidence is, in fact, admitted is a determination within the 
province of the judicial authority presiding over the 
proceeding for which the evidence is provided.

                      Article 10--Official Records

    Paragraph 1 obliges each Party to furnish the other with 
copies of publicly available records, including documents or 
information in any form, possessed by a government department 
or agency in the Requested State. The term ``government 
departments and agencies'' includes all executive, judicial, 
and legislative units of the Federal, State, and local level in 
each country. For the Czech Republic, this includes the 
executive, legislative, and judicial authorities at the central 
and regional government levels.
    Paragraph 2 provides that the Requested State may share 
with its treaty partner copies of nonpublic information in 
government files. The obligation under this provision is 
discretionary, and such requests may be denied in whole or in 
part. Moreover, the article states that the Requested State may 
only exercise its discretion to turn over information in its 
files ``to the same extent and under the same conditions'' as 
it would to its own law enforcement or judicial authorities. It 
is intended that the Central Authority of the Requested State 
will determine that extent and what those conditions would be.
    The discretionary nature of this provision was deemed 
necessary because government files in each State contain some 
kinds of information that would be available to investigative 
authorities in that State, but that justifiably would be deemed 
inappropriate to release to a foreign government. For example, 
assistance might be deemed inappropriate where the information 
requested would identify or endanger an informant, prejudice 
sources of information needed in future investigations, or 
reveal information that was given to the Requested State in 
return for a promise that it not be divulged. Of course, a 
request could be denied under this clause if the Requested 
State's law bars disclosure of the information.
    The delegations discussed whether this article should serve 
as a basis for exchange of information in tax matters. It was 
the intention of the United States delegation that the United 
States be able to provide assistance under the Treaty in tax 
matters, and such assistance could include tax return 
information when appropriate. The United States delegation was 
satisfied after discussion that this Treaty is a ``convention 
relating to the exchange of tax information'' for purposes of 
Title 26, United States Code, Section 6103(k)(4), and the 
United States would have the discretion to provide tax return 
information to the Czech Republic under this article in 
appropriate cases. \13\
---------------------------------------------------------------------------
    \13\ Under 26 U.S.C. Sec.  103(i) information in the files of the 
Internal Revenue Service (generally protected from disclosure under 26 
U.S.C. Sec.  103) may be disclosed to federal law enforcement personnel 
in the United States for use in a non-tax criminal investigations or 
proceedings, under certain conditions and pursuant to certain 
procedures. The negotiators agreed that this Treaty (which provides 
assistance both for tax offenses and in the form of information in the 
custody of tax authorities of the Requested State) is a ``convention . 
. . relating to the exchange of tax information'' under Title 26, 
United States Code, Section 6103(k)(4), pursuant to which the United 
States may exchange tax information with treaty partners. Thus, the 
Internal Revenue Service may provide tax returns and return information 
to the Czech Republic through this Treaty when, in a criminal 
investigation or prosecution, the authority of the Czech Republic on 
whose behalf the request is made can meet the same conditions required 
of United States law enforcement authorities under Title 26, United 
States Code, Sections 6103(h) and (i). As an illustration, a request 
from the Czech Republic for tax returns to be used in a non-tax 
criminal investigation, in accordance with 26 U.S.C. 6103(i)(1)(A), 
would have to specify that the law of the Czech Republic enforcement 
authority is:
    Personally and directly engaged in--
    (i) preparation for any judicial or administrative proceeding 
pertaining to the enforcement of a specifically designated criminal 
statute of the Czech Republic (not involving tax administration) to 
which the Czech Republic is or may be a party. (ii) any investigation 
which may result in such a proceeding, or (iii) any proceeding in the 
Czech Republic pertaining to enforcement of such a criminal statute to 
which the Czech Republic is or may be a party. (See 26 U.S.C. 
6103(i)(1)(A).)
    The request would have to be presented to a federal district court 
judge or magistrate for an order directing the Internal Revenue Service 
to disclose the tax returns as specified at 26 U.S.C. 6103(i)(1)(B). 
Before issuing such an order, the judge or magistrate would have to 
determine, also in accordance with 26 U.S.C. 6103(i)(1)(B), that:
    (i) there is reasonable cause to believe, based upon information 
believed to be reliable, that a specific criminal act has been 
committed, (ii) there is reasonable cause to believe that the return or 
return information is or may be relevant to a matter relating to the 
commission of such act, and (iii) the return or return information is 
sought exclusively for use in a criminal investigation in the Czech 
Republic or proceeding concerning such act, and the information sought 
to be disclosed cannot reasonably be obtained, under the circumstances, 
from another source.
    In other words, the law enforcement authorities of the Czech 
Republic seeking tax returns would be treated as if they were United 
States law enforcement authorities--undergo the same access procedure 
where they would be held to the same standards.
---------------------------------------------------------------------------
    Paragraph 3 provides for the authentication of records 
produced pursuant to this Article by a government department or 
agency responsible for their maintenance. Such authentication 
is to be effected through the use of Form C appended to the 
Treaty. If the Czech authorities properly complete, sign, and 
attach Form C to executed documents, or submit Form D 
certifying the absence or non-existence of such records, a U.S. 
judge may admit the records into evidence as self-
authenticating under Rule 902(3) of the Federal Rules of 
Evidence. The admissibility provided by this paragraph provides 
for an exception to the hearsay rule; however, admissibility 
extends only to authenticity and not to relevance, materiality, 
etc., of the evidence. Whether the evidence is, in fact, 
admitted is a determination within the province of the judicial 
authority presiding over the proceeding for which the evidence 
is provided.

           Article 11--Appearance Outside the Requested State

    This article provides that upon request, the Requested 
State shall invite persons who are located in its territory to 
travel to the Requesting State or a third State to appear 
before an appropriate authority there. It shall notify the 
Requesting State of the invitee's response. An appearance in 
the Requesting State or a third State under this article is not 
mandatory, and the invitation may be refused by the prospective 
witness.
    When the United States seeks to have the Czech Republic 
invite a person to appear in the United States or a third 
State, the United States Central Authority will send a letter 
of invitation through the Czech Republic Central Authority. The 
person invited is free to decline and shall not be subject to 
any penalty for doing so or for failing to appear after 
agreeing to do so. This does not preclude the United States 
from seeking under Article 14 service of a document such as a 
subpoena issued under Title 28, United States Code, Sections 
1783-1784 and directed to a United States citizen or resident 
located in the Czech Republic, which subpoena may entail 
sanctions for failure to appear in the United States as 
directed by the subpoena.
    Paragraph 2 provides that the person shall be informed of 
the amount and kind of expenses which the Requesting State will 
provide in a particular case. It is assumed that such expenses 
would normally include the costs of transportation, and room 
and board. When the person is to appear in the United States, a 
nominal witness fee would also be provided. Paragraph 2 also 
provides that the person who agrees to travel to the Requesting 
State may request and receive an advance for expenses. The 
advance may be provided through the embassy or a consulate of 
the Requesting State.
    Paragraph 3 provides assurances that an invited person who 
appears in the Requesting State pursuant to a request for 
assistance shall not be ``prosecuted, detained, or subjected to 
any restriction of personal liberty'' for acts committed prior 
to the invitee's leaving the Requested State. This provision 
does not protect against civil suits, prosecution, punishment, 
or restriction of personal liberty with respect to acts 
committed after departure from the Requested State. Any person 
appearing in the United States pursuant to a request under 
Article 11 or Article 12 will have such assurances unless the 
United States Central Authority specifies otherwise in the 
request inviting the person to appear.
    Paragraph 4 terminates the safe conduct provided in 
paragraph 1 if, after the person with safe conduct is notified 
that his or her presence is no longer required, that person, 
although free to leave, remains in the Requesting State for 
seven days, or, having left, voluntarily returns.

          Article 12--Temporary Transfer of Persons in Custody

    In some criminal cases, a need arises for the testimony in 
one country of a witness in custody in another country. In some 
instances, foreign countries are willing and able to ``lend'' 
witnesses to the United States Government, provided the 
witnesses would be carefully guarded while in the United States 
and returned to the foreign country at the conclusion of the 
testimony. On occasion, the United States Justice Department 
has arranged for consenting federal inmates in the United 
States to be transported to foreign countries to assist in 
criminal proceedings. \14\
---------------------------------------------------------------------------
    \14\ For example, in September, 1986, the United States Justice 
Department and the United States Drug Enforcement Administration 
arranged for four federal prisoners to be transported to the United 
Kingdom to testify for the Crown in Regina v. Dye, Williamson, Ells, 
Davies, Murphy, and Millard, a major narcotics prosecution in ``the Old 
Bailey'' (Central Criminal Court) in London.
---------------------------------------------------------------------------
    Paragraph 1 provides an express legal basis for cooperation 
in these matters. It is based on Article 26 of the United 
States-Switzerland Mutual Legal Assistance Treaty, \15\ which 
in turn is based on Article 11 of the European Convention on 
Mutual Assistance in Criminal Matters.
---------------------------------------------------------------------------
    \15\ U.S.-Switzerland Mutual Legal Assistance Treaty, supra note 6, 
art. 26.
---------------------------------------------------------------------------
    Paragraph 2 provides that a person in the custody of the 
Requesting State whose presence in the Requested State is 
sought for purposes of assistance under this Treaty may be 
transferred from the Requesting State to the Requested State if 
the person consents and if the Central Authorities of both 
States agree. This would also cover situations in which a 
person in custody in the United States on a criminal matter has 
sought permission to travel to another country to be present at 
a deposition being taken there in connection with the case. 
\16\
---------------------------------------------------------------------------
    \16\ See Title 18, United States Code, Section 3508. See also 
United States v. King, 552 F.2d 833 (9th Cir. 1976), cert. denied, 430 
U.S. 966 (1977), where the defendants insisted on traveling to Japan to 
be present at the deposition of certain witnesses in prison there.
---------------------------------------------------------------------------
    Paragraph 3 provides express authority for the receiving 
State to maintain such a person in custody throughout the 
person's stay there, unless the sending State specifically 
authorizes release. This paragraph also authorizes the 
receiving State to return the person in custody to the sending 
State, and provides that this return will occur in accordance 
with terms and conditions agreed upon by the Central 
Authorities. The initial transfer of a prisoner under this 
article requires the consent of the person involved and of both 
Central Authorities, but the provision does not require that 
the person consent to be returned to the sending State.
    Once the receiving State has agreed to assist the sending 
State's investigation or proceeding pursuant to this article, 
it would be inappropriate for the receiving State to hold the 
person transferred and require extradition proceedings before 
allowing him to return to the sending State as agreed. 
Therefore, Paragraph (3)(c) contemplates that extradition 
proceedings will not be required before the status quo is 
restored by the return of the person transferred. Paragraph 
(3)(d) states that the person is to receive credit for time 
served while in the custody of the receiving State. This is 
consistent with United States practice in these matters. 
Paragraph 3(e) provides that, where the receiving State is a 
third state, the Requesting State shall make all arrangements 
necessary to meet the requirements of this paragraph.
    Paragraph 4 states that safe conduct for the transferred 
person may be provided for by the Central Authority of the 
receiving State under the same terms set forth in Article 11, 
subject to the conditions set forth in paragraph 3 of this 
article.

               Article 13--Transit of Persons in Custody

    Most modern extradition treaties provide for cooperation in 
the transit of persons being extradited, \17\ although the 
extradition treaty currently in force between the United States 
and the Czech Republic is silent on this topic. Article 13 is 
not focused on the transit of extradited persons. Rather, this 
article provides a basis for mutual cooperation with respect to 
prisoners who are involved in a criminal investigation or 
prosecution other than as extradited fugitives (e.g., as 
witnesses appearing to testify or as defendants appearing to be 
present at a proceeding).
---------------------------------------------------------------------------
    \17\ See, e.g., U.S.-Hungary Extradition Treaty, signed Dec. 1, 
1994, entered into force March 18, 1997, art. 19; U.S.-Japan 
Extradition Treaty, signed March 3, 1978, entered into force March 26, 
1980, art. 15 (31 UST 892, TIAS 9625); U.S.-Mexico Extradition Treaty, 
signed May 4, 1978, entered into force Jan. 25, 1980, art. 20 (31 UST 
5059, TIAS 9656).
---------------------------------------------------------------------------
    Paragraph 1 gives each Party the power to authorize transit 
through its territory of a person being transferred to the 
other Contracting State by a third state. Paragraph 2 obligates 
each Party to keep in custody a person in transit during the 
transit period. Requests for transit are to contain a 
description of the person being transported and a brief 
statement of the facts of the case for which the person is 
sought. Paragraph 3 allows each Party to refuse transit of its 
nationals.
    Under this article, no advance authorization is needed if 
the person in custody is in transit to one of the Contracting 
States and is traveling by aircraft and no landing is scheduled 
in the territory of the other. Should an unscheduled landing 
occur, a request for transit may be required at that time, and 
the Requested State may grant the request if, in its 
discretion, it is deemed appropriate to do so. Where transit is 
granted, the person in transit shall be kept in custody until 
such time as the person may continue in transit out of the 
Requested State.

       Article 14--Location or Identification of Persons or Items

    This article provides for ascertaining the whereabouts in 
the Requested State of persons (such as witnesses, potential 
defendants, or experts) or items if the Requesting State seeks 
such information. This is a standard provision contained in all 
United States mutual legal assistance treaties. The Treaty 
requires only that the Requested State make ``best efforts'' to 
locate the persons or items sought by the Requesting State. The 
extent of such efforts will vary, of course, depending on the 
quality and extent of the information provided by the 
Requesting State concerning the suspected location and last 
known location.
    The obligation to locate persons or items is limited to 
persons or items that are or may be in the territory of the 
Requested State. Thus, the United States would not be obliged 
to attempt to locate persons or items in third countries. In 
all instances, the Requesting State is expected to supply all 
available information about the last known location of the 
persons or items sought.

                    Article 15--Service of Documents

    Paragraph 1 creates an obligation on the Requested State to 
use its best efforts to effect the service of documents such as 
summons, complaints, subpoenas, or other legal papers relating 
in whole or in part to a Treaty request. Identical provisions 
appear in several U.S. mutual legal assistance treaties.
    It is expected that when the United States is the Requested 
State, service under the Treaty will be made by registered mail 
(in the absence of any request by the Czech Republic to follow 
a specified procedure for service) or by the United States 
Marshal's Service in instances in which personal service is 
requested. Service in the Czech Republic typically will be made 
by mail, unless the United States specifies that some other 
form is necessary; Czech authorities typically will be able to 
accommodate such requests.
    Paragraph 2 provides that when the documents to be served 
call for the appearance of a person in the Requesting State, 
the documents should be received by the Central Authority of 
the Requested State a reasonable time before the date set for 
any such appearance.
    Paragraph 3 requires that proof of service be returned to 
the Requesting State in the manner specified in the request.

                     Article 16--Search and Seizure

    It is sometimes in the interests of justice for one State 
to ask another to search for, secure, and deliver articles or 
objects needed in the former as evidence or for other purposes. 
United States courts can and do execute such requests under 
Title 28, United States Code, Section 1782. \18\ This article 
creates a formal framework for handling such requests.
---------------------------------------------------------------------------
    \18\ See e.g., United States ex Rel. Public Prosecutor of 
Rotterdam, Netherlands v. Van Aalst, Case No 84-52-M-01 (M.D. Fla., 
Orlando Div.) (search warrant issued February 24, 1984).
---------------------------------------------------------------------------
    The negotiators agreed that requests for the production of 
physical evidence usually will be executed pursuant to Article 
9. In situations in which a subpoena duces tecum or demand for 
production is inadequate, however, this article permits a 
search and seizure.
    Article 16 requires that the search and seizure request 
include ``information justifying such action under the laws of 
the Requested State.'' This means that normally a request to 
the United States from the Czech Republic will have to be 
supported by a showing of probable cause for the search. A 
United States request to the Czech Republic would have to 
satisfy the corresponding evidentiary standard applicable there 
at the time of the request.
    When the Central Authority of the United States submits a 
request for search and seizure to one of the Central 
Authorities of the Czech Republic, the United States Central 
Authority may specify whether it wishes a Czech court or public 
prosecutor to issue the search and seizure order. Czech 
authorities can accommodate this request. If the United States 
request does not specify which Czech authority should execute 
the request, however, typically a Czech public prosecutor will 
issue the order and then engage the Czech police to conduct the 
search and seizure. Under Czech law, there is no need for Czech 
courts to be involved in the issuance of search and seizure 
orders. In fact, the practice is that search and seizure 
orders, as well as subpoenas, generally are issued by public 
prosecutors.
    Paragraph 2 is designed to establish a chain of custody for 
evidence seized pursuant to a request and to provide a method 
for proving that chain by certificates admissible in a judicial 
proceeding in the Requesting State. The Requested State is 
required to maintain a reliable record, from the time of a 
seizure, of the ``identity of the item, the integrity of its 
condition, and the continuity of its condition.'' This record 
takes the form of custodians' certificates. Each successive 
custodian prepares a certificate that, when joined with the 
other certificates from other custodians, provides a reliable 
record tracing the route of the item seized (and any change in 
its condition) from the Requested State to the judicial 
proceeding in the Requesting State at which it is introduced 
into evidence. If the judge in the Requesting State finds that 
the process is trustworthy, the judge may admit the evidence 
with the accompanying certificates as authentic. The judge is 
free to deny admission of the evidence in spite of the 
certificates if another reason exists to do so aside from 
authenticity. For the United States, this provision is intended 
to limit the need to summon officials of the Requested State to 
testify at trial to situations in which the reliability of the 
evidence (its origin or condition) is not in serious question. 
For the Czech Republic, the chain of custody is not a 
significant factor in the admissibility of evidence.
    Paragraph 3 states that the Requested State may require 
that the Requesting State agree to terms and conditions 
necessary to protect the interests of third parties in the item 
to be transferred. This article is similar to provisions in 
many other United States mutual legal assistance treaties. \19\
---------------------------------------------------------------------------
    \19\ See e.g., U.S.-Argentina Mutual Legal Assistance Treaty, Dec. 
4, 1990, art. 15(3); U.S.-Bahamas Mutual Legal Assistance Treaty, supra 
note 12, art. 15(3); U.S.-Canada Mutual Legal Assistance Treaty, supra 
note 10, art. 15(4); U.S.-U.K. Mutual Legal Assistance Treaty 
Concerning the Cayman Islands, Jul. 3, 1986, art. 15(3); U.S.-Hungary 
Mutual Legal Assistance Treaty, Dec. 1, 1994, supra note 5, art. 15(3); 
U.S.-Korea Mutual Legal Assistance Treaty, Nov. 23, 1993, art. 15(3); 
U.S.-Panama Mutual Legal Assistance Treaty, Apr. 11, 1991, art. 15(3); 
U.S.-Philippines Mutual Legal Assistance Treaty, supra note 10, art. 
15(3); U.S.-Spain Mutual Legal Assistance Treaty, Nov. 20, 1990, art. 
15(3); U.S.-U.K. Mutual Legal Assistance Treaty, Jul. 3, 1986, art. 
15(4).
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                      Article 17--Return of Items

    This article requires that upon request by the Central 
Authority of the Requested State, the Central Authority of the 
Requesting State return as soon as possible any item, including 
a document, record, or article of evidence, provided by the 
Requested State pursuant to the Treaty. The second sentence of 
this article provides that when a request for the return of an 
item is not made until after the transfer has already occurred, 
the Requesting State shall comply with the request to the 
extent feasible.

                         Article 18--Forfeiture

    A major goal of the Treaty is to enhance the efforts of 
both the United States and the Czech Republic in combating 
narcotics trafficking. One significant strategy in this effort 
is action by United States authorities to seize and confiscate 
money, property, and other proceeds of drug trafficking.
    Paragraph 1 provides that, upon request, the Requested 
State shall use its best efforts to determine whether proceeds 
or instrumentalities of a crime, which might be forfeitable or 
seized, are located in the Requested State. The second sentence 
requires that the request state the grounds for believing that 
such proceeds or instrumentalities, in fact, are located in the 
Requested State. Finally, the last sentence of this paragraph 
requires that the Requested State inform the Requesting State 
of the results of its inquiry. Upon notification, the Central 
Authority of the Contracting Party in which the proceeds or 
instrumentalities are located may take whatever action is 
appropriate under its law. If the Contracting Party in which 
the proceeds or instrumentalities are located takes any action 
with regard to forfeiture and/or immobilization of the 
property, its Central Authority shall report to the other 
Central Authority on the action taken. The phrase ``proceeds 
and instrumentalities of offenses'' includes money, securities, 
jewelry, automobiles, vessels and any other items of value used 
in the commission of the crime or obtained as a result of the 
crime.
    Paragraph 2 states that the Parties shall assist one 
another to the extent permitted by their laws in proceedings 
relating to the forfeiture of the proceeds or instrumentalities 
of offenses, to restitution to crime victims, or to the 
collection of fines imposed as sentences in criminal 
convictions. It specifically recognizes that the authorities in 
the Requested State may take immediate action to temporarily 
immobilize the assets pending further proceedings. Thus, if the 
law of the Requested State enables it to seize assets in aid of 
a proceeding in the Requesting State or to enforce a judgment 
of forfeiture levied in the Requesting State, the Treaty 
provides that the Requested State shall do so. The language of 
the article is carefully selected, however, so as not to 
require either State to take any action that would exceed its 
internal legal authority. It does not mandate institution of 
forfeiture proceedings or initiation of temporary 
immobilization in either country against property identified by 
the other if the relevant prosecution authorities do not deem 
it proper to do so. \20\
---------------------------------------------------------------------------
    \20\ In the Czech Republic, unlike the U.S., the law does not 
currently allow for civil forfeiture. However, Czech law does permit 
forfeiture in criminal cases, and ordinarily a defendant must be 
convicted in order for the Czech Republic to confiscate the defendant's 
property.
---------------------------------------------------------------------------
    The limited obligation to assist in this regard is 
carefully crafted to require action only to the extent 
permitted by the laws of either Contracting Party. If the law 
of the Requested State enables it to seize assets in aid of a 
proceeding in the Requesting State or to enforce a judgment or 
forfeiture in the Requesting State, then the Treaty encourages 
the Requested State to do so. However, the obligation does not 
require one Contracting Party to initiate legal proceedings on 
behalf of the other; the only obligation is to assist the other 
with its proceedings. As suggested by paragraph 1, institution 
of forfeiture proceedings in a Contracting Party against assets 
located there remains a decision for the appropriate 
authorities of that Contracting Party.
    Paragraph 3 gives discretion to the Requested State, to the 
extent permitted by its laws, to give effect to any final legal 
determination given in the Requesting State for the forfeiture 
of such proceeds or instrumentalities, or to initiate its own 
legal action for the forfeiture of such assets.
    United States law permits the government to transfer a 
share of certain forfeited property to other countries that 
participate directly or indirectly in the seizure or forfeiture 
of the property. Under regulations promulgated by the Attorney 
General, the amount transferred generally reflects the 
contribution of the foreign government in law enforcement 
activity which led to the seizure and forfeiture of the 
property. The law requires that the transfer be authorized by 
an international agreement between the United States and the 
foreign country, and be approved by the Secretary of State. 
\21\ Paragraph 4 is consistent with this framework, and will 
enable a Contracting Party having custody over proceeds or 
instrumentalities of offenses to transfer forfeited assets, or 
the proceeds of the sale of such assets, to the other 
Contracting Party, at the former's discretion and to the extent 
permitted by their respective laws.
---------------------------------------------------------------------------
    \21\ See Title 18, United States Code, Section 981 (i)(1).
---------------------------------------------------------------------------
    The Czech Republic does not prohibit sharing and, thus, the 
Czech delegation stated that it thought that Czech authorities 
could share a percentage of forfeited proceeds with the United 
States on a case-by-case basis.

                        Article 19--Restitution

    This provision obligates the Contracting States to assist 
each other to the extent permitted by their laws to facilitate 
restitution. One type of assistance envisioned includes the 
transfer of items obtained through criminal activity.

                       Article 20--Criminal Fines

    This Article obligates the Contracting States to assist, to 
the extent permitted by their laws, in proceedings regarding 
criminal fines. The second sentence of this provision 
specifically states that such assistance is not intended to 
include the collection of criminal fines.

             Article 21--Compatibility with Other Treaties

    This article states that assistance and procedures provided 
by this Treaty shall not prevent assistance under any other 
applicable international agreements. Article 17 also provides 
that the Treaty shall not be deemed to prevent recourse to any 
assistance available under the internal laws of either country. 
Thus, the Treaty would leave the provisions of United States 
and Czech Republic law on letters rogatory completely 
undisturbed, and would not alter any pre-existing agreements 
concerning investigative assistance.

                        Article 22--Consultation

    Experience has shown that as the parties to a treaty of 
this kind work together over the years, they become aware of 
various practical ways to make the treaty more effective and 
their own efforts more efficient. This article anticipates that 
the Contracting Parties will share those ideas with one 
another, and encourages them to agree on the implementation of 
such measures. Practical measures of this kind might include 
methods of keeping each other informed of the progress of 
investigations and cases in which treaty assistance was 
utilized, or the use of the Treaty to obtain evidence that 
otherwise might be sought via methods less acceptable to the 
Requested State. Very similar provisions are contained in 
recent United States mutual legal assistance treaties. \22\ It 
is anticipated that the Central Authorities will conduct annual 
consultations pursuant to this article.
---------------------------------------------------------------------------
    \22\ See, e.g., U.S.-Philippines Mutual Legal Assistance Treaty, 
supra note 10, art. 18; U.S.-Canada Mutual Legal Assistance Treaty, 
supra note 10, art. XVIII; U.S.-U.K. Mutual Legal Assistance Treaty 
Concerning the Cayman Islands, supra note 19, art. 18; U.S.-Argentina 
Mutual Legal Assistance Treaty, supra note 19, art. 18.
---------------------------------------------------------------------------

      Article 23--Ratification, Entry Into Force, and Termination

    Paragraph 1 contains standard provisions on the procedure 
for ratification and the exchange of the instruments of 
ratification
    Paragraph 2 provides that the Treaty shall enter into force 
two months after the exchange of instruments of ratification.
    Paragraph 3 provides that the Treaty shall apply to any 
request presented after its entry into force, even if the 
relevant acts or omissions occurred before the date on which 
the Treaty entered into force. Provisions of this kind are 
common in law enforcement agreements.
    Paragraph 4 contains standard provisions concerning the 
procedure for terminating the Treaty. Termination shall take 
effect six months after the date of written notification. 
Similar termination provisions are included in other United 
States mutual legal assistance treaties.

 Technical Analysis of the Treaty Between the United States of America 
      and Dominica on Mutual Legal Assistance in Criminal Matters

    On October 10, 1996, the United States signed a treaty with 
Dominica on Mutual Legal Assistance in Criminal Matters (``the 
Treaty''). In recent years, the United States has signed 
similar treaties with a number of countries as part of a highly 
successful effort to modernize the legal tools available to law 
enforcement authorities in need of foreign evidence for use in 
criminal cases.
    The Treaty is expected to be a valuable weapon for the 
United States in its efforts to combat organized crime, 
transnational terrorism, and international drug trafficking in 
the eastern Caribbean, where Dominica is a regional leader.
    It is anticipated that the Treaty will be implemented in 
the United States pursuant to the procedural framework provided 
by Title 28, United States Code, Section 1782. Dominica has its 
own mutual legal assistance laws in place for implementing the 
Treaty, and does not anticipate enacting new legislation. \1\
---------------------------------------------------------------------------
    \1\ ``An Act to make provision with respect to the scheme relating 
to Mutual Assistance in Criminal Matters within the Commonwealth and to 
facilitate its operation in Dominica, and to make provision concerning 
mutual assistance in criminal matters between Dominica and countries 
other than Commonwealth countries'' (15 May 1990), hereinafter 
``Dominica Mutual Assistance Act, 1990.'' Since there are some 
differences between the Treaty and Dominican law, it is anticipated 
that Dominica will issue regulations under Section 29, which will 
``direct that [the] Act shall apply in relation to [the United States] 
as if it were a Commonwealth country, subject to such limitations, 
conditions, exceptions or qualifications (if any) as may be 
prescribed...'' in order for the terms of the Treaty to be applied.
---------------------------------------------------------------------------
    The following technical analysis of the Treaty was prepared 
by the Office of International Affairs, United States 
Department of Justice, and the Office of the Legal Adviser, 
United States Department of State, based upon the negotiating 
notes. The technical analysis includes a discussion of U.S. law 
and relevant practice as of the date of its preparation, which 
are, of course, subject to change. Foreign law discussions 
reflect the current state of that law, to the best of the 
drafters' knowledge.

                     Article 1--Scope of Assistance

    Paragraph 1 requires the Parties to provide mutual 
assistance in connection with the investigation, prosecution, 
and prevention of offenses, and in proceedings relating to 
criminal matters.
    The negotiators specifically agreed that the term 
``investigations'' includes grand jury proceedings in the 
United States and similar pre- charge proceedings in Dominica, 
and other legal measures taken prior to the filing of formal 
charges in either State. \2\ The term ``proceedings'' was 
intended to cover the full range of proceedings in a criminal 
case, including such matters as bail and sentencing hearings. 
\3\ It was also agreed that since the phrase ``proceedings 
related to criminal matters'' is broader than the 
investigation, prosecution or sentencing process itself, 
proceedings covered by the Treaty need not be strictly criminal 
in nature. For example, proceedings to forfeit to the 
government the proceeds of illegal drug trafficking may be 
civil in nature; \4\ yet such proceedings are covered by the 
Treaty.
---------------------------------------------------------------------------
    \2\ The requirement that assistance be provided under the Treaty at 
the pre-indictment stage is critical to the U.S., as our investigators 
and prosecutors often need to obtain evidence from foreign countries in 
order to determine whether or not to file criminal charges. This 
obligation is a reciprocal one; the U.S. must assist Dominica under the 
Treaty in connection with investigations prior to charges being filed 
in Dominica. Prior to the 1996 amendments to Title 28, United States 
Code, Section 1782, some U.S. courts had interpreted that provision to 
require that assistance be provided in criminal matters only if formal 
charges have already been filed abroad, or are ``imminent,'' or ``very 
likely.'' McCarthy, ``A Proposed Uniform Standard for U.S. Courts in 
Granting Requests for International Judicial Assistance,'' 15 Fordham 
Int'l Law J. 772 (1991). The 1996 amendment eliminates this problem, 
however, by amending subsec. (a) to state ``including criminal 
investigation conducted before formal accusation.'' In any event, this 
Treaty was intentionally written to cover criminal investigations that 
have just begun as well as those that are nearly completed; it draws no 
distinction between cases in which charges are already pending, 
``imminent,'' ``very likely,'' or ``very likely very soon.'' Thus, U.S. 
courts should execute requests under the Treaty without examining such 
factors.
    \3\ One United States court has interpreted Title 28, United States 
Code, Section 1782, as permitting the execution of a request for 
assistance from a foreign country only if the evidence sought is for 
use in proceedings before an adjudicatory ``tribunal'' in the foreign 
country. In Re Letters Rogatory Issued by the Director of Inspection of 
the Gov't of India, 385 F.2d 1017 (2d Cir. 1967); Fonseca v. 
Blumenthal, 620 F.2d 322 (2d Cir. 1980). This rule poses an unnecessary 
obstacle to the execution of requests concerning matters which are at 
the investigatory stage, or which are customarily handled by 
administrative officials in the Requesting Party. Since this paragraph 
of the treaty specifically permits requests to be made in connection 
with matters not within the jurisdiction of an adjudicatory 
``tribunal'' in the Requesting State, this paragraph accords the courts 
broader authority to execute requests than does Title 28, United States 
Code, Section 1782, as interpreted in the India and Fonseca cases.
    \4\ See 21 U.S.C. 881; 18 U.S.C. 1964.
---------------------------------------------------------------------------
    Paragraph 2 lists the major types of assistance 
specifically considered by the Treaty negotiators. Most of the 
items listed in the paragraph are described in detail in 
subsequent articles. The list is not intended to be exhaustive, 
a fact which is signaled by the word ``include'' in the opening 
clause of the paragraph and reinforced by the final 
subparagraph.
    Many law enforcement treaties, especially in the area of 
extradition, condition cooperation upon a showing of ``dual 
criminality'', i.e., proof that the facts underlying the 
offense charged in the Requesting State would also constitute 
an offense had they occurred in the Requested State. Paragraph 
3 of this Article 1, however, makes it clear that there is no 
general requirement of dual criminality under this Treaty for 
cooperation. Thus, assistance may be provided even when the 
criminal matter under investigation in the Requesting State 
would not be a crime in the Requested State ``[e]xcept as 
otherwise provided by this Treaty,'' a phrase which refers to 
Article 3(1)(e), under which the Requested State may, in its 
discretion, require dual criminality for a request under 
Article 14 (involving searches and seizures) or Article 16 
(involving asset forfeiture matters). Article 1(3) is important 
because United States and Dominica criminal law differ 
somewhat, and a general dual criminality rule would make 
assistance unavailable in significant areas. This type of 
limited dual criminality provision is found in other U.S. 
mutual legal assistance treaties. \5\ During the negotiations, 
the United States delegation received assurances that 
assistance would be available under the Treaty to the United 
States in investigations of such offenses as conspiracy; drug 
trafficking, including continuing criminal enterprise (Title 
21, United States Code, Section 848), offenses under the 
racketeering statutes (Title 18, United States Code, Sections 
1961-1968), money laundering, tax crimes, including tax evasion 
and tax fraud, crimes against environmental protection laws, 
and antitrust violations.
---------------------------------------------------------------------------
    \5\ See e.g., U.S.-Argentina Treaty on Mutual Legal Assistance in 
Criminal Matters, Dec. 4, 1990, art. 1(3); U.S.-Philippines Treaty on 
Mutual Legal Assistance in Criminal Matters, Nov. 13, 1994, art. 1(3).
---------------------------------------------------------------------------
    Paragraph 4 contains a standard provision in United States 
mutual legal assistance treaties \6\ that states that the 
Treaty is intended solely for government-to-government mutual 
legal assistance. The Treaty is not intended to provide to 
private persons a means of evidence gathering, or to extend 
generally to civil matters. Private litigants in the United 
States may continue to obtain evidence from Dominica by letters 
rogatory, an avenue of international assistance that the Treaty 
leaves undisturbed. Similarly, the paragraph provides that the 
Treaty is not intended to create any right in a private person 
to suppress or exclude evidence provided pursuant to the 
Treaty, or to impede the execution of a request.
---------------------------------------------------------------------------
    \6\ See United States v. Johnpoll, 739 F.2d 702 (2d Cir. 1984), 
cert. denied, 469 U.S. 1075 (1984).
---------------------------------------------------------------------------

                     Article 2--Central Authorities

    This article requires that each Party establish a ``Central 
Authority'' for transmission, receipt, and handling of Treaty 
requests. The Central Authority of the United States would make 
all requests to Dominica on behalf of federal agencies, state 
agencies, and local law enforcement authorities in the United 
States. The Dominican Central Authority would make all requests 
emanating from officials in Dominica.
    The Central Authority for the Requesting State will 
exercise discretion as to the form and content of requests, and 
the number and priority of requests. The Central Authority of 
the Requested State is also responsible for receiving each 
request, transmitting it to the appropriate federal or state 
agency, court, or other authority for execution, and ensuring 
that a timely response is made.
    Paragraph 2 provides that the Attorney General or a person 
designated by the Attorney General will be the Central 
Authority for the United States. The Attorney General has 
delegated the authority to handle the duties of Central 
Authority under mutual assistance treaties to the Assistant 
Attorney General in charge of the Criminal Division. \7\ 
Paragraph 2 also states that the Attorney General of Dominica 
or a person designated by the Attorney General will serve as 
the Central Authority for Dominica.
---------------------------------------------------------------------------
    \7\ 28 C.F.R. Sec.  0.64-1. The Assistant Attorney General for the 
Criminal Division has in turn delegated this authority to the Deputy 
Assistant Attorneys General and the Director of the Criminal Division's 
Office of International Affairs, in accordance with the regulation. 
Directive No. 81, 45 Fed. Reg. 79,758 (1980), as corrected at 48 Fed. 
Reg. 54,595 (1983). That delegation was subsequently extended to the 
Deputy Directors of the Office of International Affairs. 59 Fed. Reg. 
42,160 (1994).
---------------------------------------------------------------------------
    Paragraph 3 states that the Central Authorities shall 
communicate directly with one another for the purposes of the 
Treaty. It is anticipated that such communication will be 
accomplished by telephone, telefax, or INTERPOL channels, or 
any other means, at the option of the Central Authorities 
themselves.

                  Article 3--Limitations on Assistance

    This article specifies the limited classes of cases in 
which assistance may be denied under the Treaty.
    Paragraph (1)(a) permits the Requested State to deny a 
request if it relates to an offense under military law that 
would not be an offense under ordinary criminal law. Similar 
provisions appear in many other U.S. mutual legal assistance 
treaties.
    Paragraph (1)(b) permits the Central Authority of the 
Requested State to deny a request if execution of the request 
would prejudice the security or other essential public 
interests of that State. All United States mutual legal 
assistance treaties contain provisions allowing the Requested 
State to decline to execute a request if execution would 
prejudice its essential interests.
    The delegations agreed that the word ``security'' would 
include cases in which assistance might involve disclosure of 
information that is classified for national security reasons. 
It is anticipated that the United States Department of Justice, 
in its role as Central Authority for the United States, would 
work closely with the Department of State and other government 
agencies to determine whether to execute a request that might 
fall in this category.
    The delegations also agreed that the phrase ``essential 
public interests'' was intended to narrowly limit the class of 
cases in which assistance may be denied. It would not be enough 
that the Requesting State's case is one that would be 
inconsistent with public policy had it been brought in the 
Requested State. Rather, the Requested State must be convinced 
that execution of the request would seriously conflict with 
significant public policy. An example might be a request 
involving prosecution by the Requesting State of conduct which 
occurred in the Requested State and is constitutionally 
protected in that State.
    However, it was agreed that ``essential public interests'' 
could include interests unrelated to national military or 
political security, and be invoked if the execution of a 
request would violate essential United States interests related 
to the fundamental purposes of the Treaty. For example, one 
fundamental purpose of the Treaty is to enhance law enforcement 
cooperation, and attaining that purpose would be hampered if 
sensitive law enforcement information available under the 
Treaty were to fall into the wrong hands. Therefore, the United 
States Central Authority may invoke Paragraph (1)(b) to decline 
to provide sensitive or confidential drug related information 
pursuant to a request under this Treaty whenever it determines, 
after appropriate consultation with law enforcement, 
intelligence, and foreign policy agencies, that a senior 
foreign government official who will have access to the 
information is engaged in or facilitates the production or 
distribution of illegal drugs and is using the request to the 
prejudice of a U.S. investigation or prosecution. \8\
---------------------------------------------------------------------------
    \8\ This is consistent with the Senate resolution of advice and 
consent to ratification, e.g., of the mutual legal assistance treaties 
with Mexico, Canada, Belgium, Thailand, the Bahamas, and the United 
Kingdom Concerning the Cayman Islands. Cong. Rec. 13884, October 24, 
1989. See also Mutual Legal Assistance Treaty Concerning the Cayman 
Islands: Report by the Committee on Foreign Relations, 100th Cong., 2nd 
Sess. 67 (1988) (Testimony of Deputy Assistant Attorney General Mark M. 
Richard).
---------------------------------------------------------------------------
    In general, the mere fact that the execution of a request 
would involve the disclosure of records protected by bank or 
business secrecy in the Requested State would not justify 
invocation of the ``essential public interests'' provision. 
Indeed, a major objective of the Treaty is to provide a formal, 
agreed channel for making such information available for law 
enforcement purposes. In the course of the negotiations, the 
Dominica delegation expressed its view that in very exceptional 
and narrow circumstances the disclosure of business or banking 
secrets could be of such significant importance to its 
Government (e.g., if disclosure would effectively destroy an 
entire domestic industry rather than just a specific business 
entity) that it could prejudice that State's ``essential public 
interests'' and entitle it to deny assistance. \9\ The U.S. 
delegation did not disagree that there might be such 
extraordinary circumstances, but emphasized its view that 
denials of assistance on this basis by either party should be 
extremely rare.
---------------------------------------------------------------------------
    \9\ The Dominica view of this provision is thus similar to the 
Swiss view of Article 3(2) of the U.S.-Switzerland Treaty. See 
Technical Analysis to the Treaty between the U.S. and Switzerland on 
Mutual Assistance in Criminal Matters, signed May 25, 1973. U.S. Senate 
Exec. F, 94th Cong. 2d Sess. p. 39 (1976).
---------------------------------------------------------------------------
    Paragraph (1)(c) permits the denial of a request if it is 
not made in conformity with the Treaty.
    Paragraph (1)(d) permits denial of a request if it involves 
a political offense. \10\ It is anated that the Central 
Authorities will employ jurisprudence similar to that used in 
the extradition treaties for determining what is a ``political 
offense.'' These restrictions are similar to those found in 
other mutual legal assistance treaties.
---------------------------------------------------------------------------
    \10\ See Section 19(2)(a) and 19(2)(b), Dominica Mutual Assistance 
Act 1990.
---------------------------------------------------------------------------
    Paragraph (1)(e) permits denial of a request if there is no 
``dual criminality'' with respect to requests made pursuant to 
Article 14 (involving searches and seizures) or Article 16 
(involving asset forfeiture matters).
    Paragraph (1)(f) permits denial of the request if execution 
would be contrary to the Constitution of the Requested State. 
This provision was deemed necessary under Dominican law, \11\ 
and is similar to clauses in other United States mutual legal 
assistance treaties. \12\
---------------------------------------------------------------------------
    \11\ Section 19(2)(e), St. Dominica Mutual Assistance Act 1990.
    \12\ U.S.-Jamaica Mutual Legal Assistance Treaty, July 7, 1989, 
art. 2(1)(e); U.S.-Nigeria Mutual Legal Assistance Treaty, Sept. 13, 
1989, art. III(1)(d).
---------------------------------------------------------------------------
    Paragraph 2 is similar to Article 3(2) of the U.S.-
Switzerland Mutual Legal Assistance Treaty, \13\ and obliges 
the Requested State to consider imposing appropriate conditions 
on its assistance in lieu of denying a request outright 
pursuant to the first paragraph of the article. For example, a 
Contracting Party might request information that could be used 
either in a routine criminal case (which would be within the 
scope of the Treaty) or in a politically motivated prosecution 
(which would be subject to refusal). This paragraph would 
permit the Requested State to provide the information on the 
condition that it be used only in the routine criminal case. 
Naturally, the Requested State would notify the Requesting 
State of any proposed conditions before actually delivering the 
evidence in question, thereby according the Requesting State an 
opportunity to indicate whether it is willing to accept the 
evidence subject to the conditions. If the Requesting State 
does accept the evidence subject to the conditions, it must 
honor the conditions.
---------------------------------------------------------------------------
    \13\ U.S.-Switzerland Mutual Legal Assistance Treaty, May 25, 1973, 
art. 26, 27 U.S.T. 2019, T.I.A.S. No. 8302, 1052 U.N.T.S. 61.
---------------------------------------------------------------------------
    Paragraph 3 effectively requires that the Central Authority 
of the Requested State promptly notify the Central Authority of 
the Requesting State of the basis for any denial of assistance. 
This ensures that, when a request is only partly executed, the 
Requested State will provide some explanation for not providing 
all of the information or evidence sought. This should avoid 
misunderstandings, and enable the Requesting State to better 
prepare its requests in the future.

                Article 4--Form and Contents of Requests

    Paragraph 1 requires that requests be in writing, except 
that the Central Authority of the Requested State may accept a 
request in another form in ``emergency situations.'' A request 
in another form must be confirmed in writing within ten days 
unless the Central Authority of the Requested State agrees 
otherwise.
    Paragraph 2 lists the four kinds of information deemed 
crucial to the efficient operation of the Treaty which must be 
included in each request. Paragraph 3 outlines kinds of 
information that are important but not always crucial, and 
should be provided ``to the extent necessary and possible.'' In 
keeping with the intention of the Parties that requests be as 
simple and straightforward as possible, there is no requirement 
under the Treaty that a request be legalized or certified in 
any particular manner.

                    Article 5--Execution of Requests

    Paragraph 1 requires each Central Authority promptly to 
execute requests. The negotiators intended that the Central 
Authority, upon receiving a request, will first review the 
request, then promptly notify the Central Authority of the 
Requesting State if the request does not appear to comply with 
the Treaty's terms. If the request does satisfy the Treaty's 
requirements and the assistance sought can be provided by the 
Central Authority itself, the request will be fulfilled 
immediately. If the request meets the Treaty's requirements but 
its execution requires action by some other entity in the 
Requested State, the Central Authority will promptly transmit 
the request to the correct entity for execution.
    When the United States is the Requested State, it is 
anticipated that the Central Authority will transmit most 
requests to federal investigators, prosecutors, or judicial 
officials for execution if the Central Authority deems it 
appropriate to do so.
    Paragraph 1 further authorizes and requires the federal, 
state, or local agency or authority selected by the Central 
Authority to do everything within its power and take whatever 
action would be necessary to execute the request. This 
provision is not intended or understood to authorize the use of 
the grand jury in the United States for the collection of 
evidence pursuant to a request from Dominica. Rather, it is 
anticipated that when a request from Dominica requires 
compulsory process for execution, the United States Department 
of Justice would ask a federal court to issue the necessary 
process under Title 28, United States Code, Section 1782, and 
the provisions of the Treaty. \14\
---------------------------------------------------------------------------
    \14\ This paragraph of the Treaty specifically authorizes United 
States courts to use all of their powers to issue subpoenas and other 
process to satisfy a request under the Treaty.
---------------------------------------------------------------------------
    The third sentence in Article 5(1) reads ``[t]he competent 
judicial or other authorities of the Requested State shall have 
power to issue subpoenas, search warrants, or other orders 
necessary to execute the request.'' This language reflects an 
understanding that the Parties intend to provide each other 
with every available form of assistance from judicial and 
executive branches of government in the execution of mutual 
assistance requests. The phrase refers to ``judicial or other 
authorities'' to include all those officials authorized to 
issue compulsory process that might be needed in executing a 
request. For example, in Dominica, justices of the peace and 
senior police officers are empowered to issue certain kinds of 
compulsory process under certain circumstances.
    Paragraph 2 states that the Central Authority of the 
Requested State shall make all necessary arrangements for and 
meet the costs of representing the Requesting State in any 
proceedings in the Requested State arising out of the request 
for assistance. Thus, it is understood that if execution of the 
request entails action by a judicial or administrative agency, 
the Central Authority of the Requested State shall arrange for 
the presentation of the request to that court or agency at no 
cost to the Requesting State. Since the cost of retaining 
counsel abroad to present and process letters rogatory is 
sometimes quite high, this provision for reciprocal legal 
representation in Paragraph 2 is a significant advance in 
international legal cooperation. It is also understood that 
should the Requesting State choose to hire private counsel for 
a particular request, it is free to do so at its own expense.
    Paragraph 3 is inspired by Article 5(5) of the U.S.-
Jamaican Mutual Legal Assistance Treaty \15\, and provides, 
``[r]equests shall be executed according to the internal laws 
and procedures of the Requested State, except to the extent 
that this Treaty provides otherwise.'' Thus, the method of 
executing a request for assistance under the Treaty must be in 
accordance with the Requested State's internal laws absent 
specific contrary procedures in the Treaty itself. Thus, 
neither State is expected to take any action pursuant to a 
Treaty request which would be prohibited under its internal 
laws. For the United States, the Treaty is intended to be self-
executing; no new or additional legislation will be needed to 
carry out the obligations undertaken.
---------------------------------------------------------------------------
    \15\ U.S.-Jamaica Mutual Legal Assistance Treaty, supra note 12.
---------------------------------------------------------------------------
    The same paragraph requires that procedures specified in 
the request shall be followed in the execution of the request 
except to the extent that those procedures cannot lawfully be 
followed in the Requested State. This provision is necessary 
for two reasons.
    First, there are significant differences between the 
procedures which must be followed by United States and Dominica 
authorities in collecting evidence in order to assure the 
admissibility of that evidence at trial. For instance, United 
States law permits documentary evidence taken abroad to be 
admitted in evidence if the evidence is duly certified and the 
defendant has been given fair opportunity to test its 
authenticity. \16\ Dominica law currently contains no similar 
provision. Thus, documents assembled in Dominica in strict 
conformity with Dominican procedures on evidence might not be 
admissible in United States courts. Similarly, United States 
courts utilize procedural techniques such as videotape 
depositions to enhance the reliability of evidence taken 
abroad, and some of these techniques, while not forbidden, are 
not used in Dominica.
---------------------------------------------------------------------------
    \16\ Title 18, United States Code, Section 3505.
---------------------------------------------------------------------------
    Second, the evidence in question could be needed for 
subjection to forensic examination, and sometimes the 
procedures that must be followed to enhance the scientific 
accuracy of such tests do not coincide with those utilized in 
assembling evidence for admission into evidence at trial. The 
value of such forensic examinations could be significantly 
lessened--and the Requesting State's investigation could be 
retarded - - if the Requested State were to insist 
unnecessarily on handling the evidence in a manner usually 
reserved for evidence to be presented to its own courts.
    Both delegations agreed that the Treaty's primary goal of 
enhancing law enforcement in the Requesting State could be 
frustrated if the Requested State were to insist on producing 
evidence in a manner which renders the evidence inadmissible or 
less persuasive in the Requesting State. For this reason, 
Paragraph 3 requires the Requested State to follow the 
procedure outlined in the request to the extent that it can, 
even if the procedure is not that usually employed in its own 
proceedings. However, if the procedure called for in the 
request is unlawful in the Requested State (as opposed to 
simply unfamiliar there), the appropriate procedure under the 
law applicable for investigations or proceedings in the 
Requested State will be utilized.
    Paragraph 4 states that a request for assistance need not 
be executed immediately when the Central Authority of the 
Requested State determines that execution would interfere with 
an ongoing investigation or legal proceeding in the Requested 
State. The Central Authority of the Requested State may, in its 
discretion, take such preliminary action as deemed advisable to 
obtain or preserve evidence that might otherwise be lost before 
the conclusion of the investigation or legal proceedings in 
that State. The paragraph also allows the Requested State to 
provide the information sought to the Requesting State subject 
to conditions needed to avoid interference with the Requested 
State's proceedings.
    It is anticipated that some United States requests for 
assistance may contain information which under our law must be 
kept confidential. For example, it may be necessary to set out 
information that is ordinarily protected by Rule 6(e), Federal 
Rules of Criminal Procedure, in the course of an explanation of 
``the subject matter and nature of the investigation, 
prosecution, or proceeding'' as required by Article 4(2)(b). 
Therefore, Paragraph 5 of Article 5 enables the Requesting 
Party to call upon the Requested State to keep the information 
in the request confidential. \17\ If the Requested State cannot 
execute the request without disclosing the information in 
question (as might be the case if execution requires a public 
judicial proceeding in the Requested State), or if for some 
other reason this confidentiality cannot be assured, the Treaty 
obliges the Requested State to so indicate, thereby giving the 
Requesting State an opportunity to withdraw the request rather 
than risk jeopardizing an investigation or proceeding by public 
disclosure of the information.
---------------------------------------------------------------------------
    \17\ This provision is similar to language in other United States 
mutual legal assistance treaties. See e.g., U.S.-Mexico Mutual Legal 
Assistance Treaty, Dec. 9, 1987, art. 4(5); U.S.-Canada Mutual Legal 
Assistance Treaty, Mar. 18, 1985; art. 6(5), U.S.-Italy Mutual Legal 
Assistance Treaty, Nov. 9, 1982, art. 8(2); US.-Philippines Mutual 
Legal Assistance Treaty, supra note 5, art. 5(5).
---------------------------------------------------------------------------
    Paragraph 6 states that the Central Authority of the 
Requested State shall respond to reasonable inquiries by the 
Requesting State concerning progress of its request. This is to 
encourage open communication between the Central Authorities in 
monitoring the status of specific requests.
    Paragraph 7 requires that the Central Authority of the 
Requested State promptly notify the Central Authority of the 
Requesting State of the outcome of the execution of a request. 
If the assistance sought is not provided, the Central Authority 
of the Requested State must also explain the basis for the 
outcome to the Central Authority of the Requesting State. For 
example, if the evidence sought could not be located, the 
Central Authority of the Requested State would report that fact 
to the Central Authority of the Requesting State.

                            Article 6--Costs

    This article reflects the increasingly accepted 
international rule that each State shall bear the expenses 
incurred within its territory in executing a legal assistance 
treaty request. This is consistent with similar provisions in 
other United States mutual legal assistance treaties. \18\ 
Article 6 states that the Requesting State will pay fees of 
expert witnesses, translation, interpretation and transcription 
costs, and allowances and expenses related to travel of persons 
pursuant to Articles 10 and 11.
---------------------------------------------------------------------------
    \18\ See, e.g., U.S.-Canada Mutual Legal Assistance Treaty, supra 
note 17, art. 8; U.S.-Philippines Mutual Legal Assistance Treaty, supra 
note 5, art. 6.
---------------------------------------------------------------------------

                     Article 7--Limitations on Use

    Paragraph 1 states that the Central Authority of the 
Requested State may require that information provided under the 
Treaty not be used for any purpose other than that stated in 
the request without the prior consent of the Requested State. 
If such confidentiality is requested, the Requesting State must 
comply with the conditions. It will be recalled that Article 
4(2)(d) states that the Requesting State must specify the 
purpose for which the information or evidence sought under the 
Treaty is needed.
    It is not anticipated that the Central Authority of the 
Requested State will routinely request use limitations under 
paragraph 1. Rather, it is expected that such limitations will 
be requested sparingly, only when there is good reason to 
restrict the utilization of the evidence.
    Paragraph 2 states that the Requested State may request 
that the information or evidence it provides to the Requesting 
State be kept confidential. Under most United States mutual 
legal assistance treaties, conditions of confidentiality are 
imposed only when necessary, and are tailored to fit the 
circumstances of each particular case. For instance, the 
Requested State may wish to cooperate with the investigation in 
the Requesting State but choose to limit access to information 
which might endanger the safety of an informant, or unduly 
prejudice the interests of persons not connected in any way 
with the matter being investigated in the Requesting State. 
Paragraph 2 requires that if conditions of confidentiality are 
imposed, the Requesting State need only make ``best efforts'' 
to comply with them. This ``best efforts'' language was used 
because the purpose of the Treaty is the production of evidence 
for use at trial, and that purpose would be frustrated if the 
Requested State could routinely permit the Requesting State to 
see valuable evidence, but impose confidentiality restrictions 
which prevent the Requesting State from using it.
    The Dominica delegation expressed concern that information 
it might supply in response to a request by the United States 
under the Treaty not be disclosed under the Freedom of 
Information Act. Both delegations agreed that since this 
article permits the Requested State to prohibit the Requesting 
State's disclosure of information for any purpose other than 
that stated in the request, a Freedom of Information Act 
request that seeks information that the United States obtained 
under the Treaty would have to be denied if the United States 
received the information on the condition that it be kept 
confidential.
    If the United States Government were to receive evidence 
under the Treaty that seems to be exculpatory to the defendant 
in another case, the United States might be obliged to share 
the evidence with the defendant in the second case. Brady v. 
Maryland, 373 U.S. 83 (1963). Therefore, Paragraph 3 states 
that nothing in Article 7 shall preclude the use or disclosure 
of information to the extent that there is an obligation to do 
so under the Constitution of the Requesting State in a criminal 
prosecution. Any such proposed disclosure and the provision of 
the Constitution under which such disclosure is required shall 
be notified by the Requesting State to the Requested State in 
advance.
    Paragraph 4 states that once evidence obtained under the 
Treaty has been revealed to the public in accordance with 
Paragraph 1 or 2, the Requesting State is free to use the 
evidence for any purpose. Once evidence obtained under the 
Treaty has been revealed to the public in a trial, that 
information effectively becomes part of the public domain, and 
is likely to become a matter of common knowledge, perhaps even 
be described in the press. The negotiators noted that once this 
has occurred, it is practically impossible for the Central 
Authority of the Requesting Party to block the use of that 
information by third parties.
    It should be noted that under Article 1(4), the 
restrictions outlined in Article 7 are for the benefit of the 
Contracting Parties, and the invocation and enforcement of 
these provisions are left entirely to the Contracting Parties. 
If a person alleges that a Dominica authority seeks to use 
information or evidence obtained from the United States in a 
manner inconsistent with this article, the person can inform 
the Central Authority of the United States of the allegations 
for consideration as a matter between the Contracting Parties.

        Article 8--Testimony or Evidence in the Requested State

    Paragraph 1 states that a person in the Requested State 
from whom testimony or evidence is sought shall be compelled, 
if necessary, to appear and testify or produce items, including 
documents, records, or articles of evidence. The compulsion 
contemplated by this article can be accomplished by subpoena or 
any other means available under the law of the Requested State.
    Paragraph 2 requires that, upon request, the Requested 
State shall furnish information in advance about the date and 
place of the taking of testimony or evidence.
    Paragraph 3 provides that any persons specified in the 
request, including the defendant and his counsel in criminal 
cases, shall be permitted by the Requested State to be present 
and pose questions during the taking of testimony under this 
article. Paragraph 4, when read together with Article 5(3), 
ensures that no person will be compelled to furnish information 
if he has a right not to do so under the law of the Requested 
State. Thus, a witness questioned in the United States pursuant 
to a request from Dominica is guaranteed the right to invoke 
any of the testimonial privileges (i.e., attorney client, 
interspousal) available in the United States as well as the 
constitutional privilege against self-incrimination, to the 
extent that it might apply in the context of evidence being 
taken for foreign proceedings. \19\ A witness testifying in 
Dominica may raise any of the similar privileges available 
under Dominican law.
---------------------------------------------------------------------------
    \19\ This is consistent with the approach taken in Title 28, United 
States Code, Section 1782.
---------------------------------------------------------------------------
    Paragraph 4 does require that if a witness attempts to 
assert a privilege that is unique to the Requesting State, the 
Requested State will take the desired evidence and turn it over 
to the Requesting State along with notice that it was obtained 
over a claim of privilege. The applicability of the privilege 
can then be determined in the Requesting State, where the scope 
of the privilege and the legislative and policy reasons 
underlying the privilege are best understood. A similar 
provision appears in many of our recent mutual legal assistance 
treaties. \20\
---------------------------------------------------------------------------
    \20\ See e.g., U.S.-Netherlands Mutual Legal Assistance Treaty, 
June 12, 1981, art. 5(1), T.I.A.S. No. 10734, 1359 U.N.T.S. 209; U.S.-
Bahamas Mutual Legal Assistance Treaty, June 12 & Aug. 18, 1987, art. 
9(2); U.S.-Mexico Mutual Legal Assistance Treaty, supra note 17, art. 
7(2); U.S.- Philippines Mutual Legal Assistance Treaty, supra note 5, 
art. 8(4).
---------------------------------------------------------------------------
    Paragraph 5 states that evidence produced pursuant to this 
article may be authenticated by an attestation, including, in 
the case of business records, authentication in the manner 
indicated in Form A appended to the Treaty. Thus, the provision 
establishes a procedure for authenticating records in a manner 
essentially similar to Title 18, United States Code, Section 
3505. It is understood that the second and third sentences of 
this paragraph provide for the admissibility of authenticated 
documents as evidence without additional foundation or 
authentication. With respect to the United States, this 
paragraph is self-executing, and does not need implementing 
legislation.
    Article 8(5) provides that the evidence authenticated by 
Form A is ``admissible,'' but of course, it will be up to the 
judicial authority presiding over the trial to determine 
whether the evidence should in fact be admitted. The 
negotiators intended that evidentiary tests other than 
authentication (such as relevance, and materiality) would still 
have to be satisfied in each case.

               Article 9--Records of Government Agencies

    Paragraph 1 obliges each Party to furnish the other with 
copies of publicly available records, including documents or 
information in any form, possessed by a government department 
or agency in the Requested State. The term ``government 
departments and agencies'' includes all executive, judicial, 
and legislative units of the Federal, State, and local level in 
each country.
    Paragraph 2 provides that the Requested State may share 
with its treaty partner copies of nonpublic information in 
government files. The obligation under this provision is 
discretionary, and such requests may be denied in whole or in 
part. Moreover, the article states that the Requested State may 
only exercise its discretion to turn over information in its 
files ``to the same extent and under the same conditions'' as 
it would to its own law enforcement or judicial authorities. It 
is intended that the Central Authority of the Requested State, 
in close consultation with the interested law enforcement 
authorities of that State, will determine that extent and what 
those conditions would be.
    The discretionary nature of this provision was deemed 
necessary because government files in each State contain some 
kinds of information that would be available to investigative 
authorities in that State, but that justifiably would be deemed 
inappropriate to release to a foreign government. For example, 
assistance might be deemed inappropriate where the information 
requested would identify or endanger an informant, prejudice 
sources of information needed in future investigations, or 
reveal information that was given to the Requested State in 
return for a promise that it not be divulged. Of course, a 
request could be denied under this clause if the Requested 
State's law bars disclosure of the information.
    The delegations discussed whether this article should serve 
as a basis for exchange of information in tax matters. It was 
the intention of the United States delegation that the United 
States be able to provide assistance under the Treaty for tax 
offenses, as well as to provide information in the custody of 
the Internal Revenue Service for both tax offenses and non-tax 
offenses under circumstances that such information is available 
to U.S. law enforcement authorities. The United States 
delegation was satisfied after discussion that this Treaty is a 
``convention relating to the exchange of tax information'' for 
purposes of Title 26, United States Code, Section 6103(k)(4), 
and the United States would have the discretion to provide tax 
return information to Dominica under this article in 
appropriate cases. \21\
---------------------------------------------------------------------------
    \21\ Thus, this treaty, like all of the other U.S. bilateral mutual 
legal assistance treaties, authorizes the Contracting Parties to 
provide tax return information in appropriate circumstances.
---------------------------------------------------------------------------
    Paragraph 3 states that documents provided under this 
article may be authenticated in accordance with the procedures 
specified in the request, and if authenticated in this manner, 
the evidence shall be admissible in evidence in the Requesting 
State. Thus, the Treaty establishes a procedure for 
authenticating official foreign documents that is consistent 
with Rule 902(3) of the Federal Rules of Evidence and Rule 44, 
Federal Rules of Civil Procedure.
    Paragraph 3, similar to Article 8(5), states that documents 
authenticated under this paragraph shall be ``admissible'' but 
it will, of course, be up to the judicial authority presiding 
over the trial to determine whether the evidence should in fact 
be admitted. The evidentiary tests other than authentication 
(such as relevance or materiality) must be established in each 
case.

             Article 10--Testimony in the Requesting State

    This article provides that upon request, the Requested 
State shall invite persons who are located in its territory to 
travel to the Requesting State to appear before an appropriate 
authority there. It shall notify the Requesting State of the 
invitee's response. An appearance in the Requesting State under 
this article is not mandatory, and the invitation may be 
refused by the prospective witness. The Requesting State would 
be expected to pay the expenses of such an appearance pursuant 
to Article 6 if requested by the person whose appearance is 
sought.
    Paragraph l provides that the person shall be informed of 
the amount and kind of expenses which the Requesting State will 
provide in a particular case. It is assumed that such expenses 
would normally include the costs of transportation, and room 
and board. When the person is to appear in the United States, a 
nominal witness fee would also be provided.
    Paragraph 2 provides that the Central Authority of the 
Requesting State shall inform the Central Authority of the 
Requested State whether any decision has been made that a 
person who is in the Requesting State pursuant to this article 
shall not be subject to service of process, or be detained or 
subjected to any restriction of personal liberty while he is in 
the Requesting State. Most U.S. mutual legal assistance 
treaties anticipate that the Central Authority will determine 
whether to extend such safe conduct, but under the Treaty with 
Dominica, the Central Authority merely reports whether safe 
conduct has been extended. This is because in Dominica only the 
Director of Public Prosecutions can extend such safe conduct, 
and the Attorney General (who is Central Authority for Dominica 
under Article 3 of the Treaty) cannot do so. This ``safe 
conduct'' is limited to acts or convictions that preceded the 
witness's departure from the Requested State. It is understood 
that this provision would not prevent the prosecution of a 
person for perjury or any other crime committed while in the 
Requesting State.
    Paragraph 3 states that the safe conduct guaranteed in this 
article expires seven days after the Central Authority of the 
Requesting State has notified the Central Authority of the 
Requested State that the person's presence is no longer 
required, or if the person leaves the territory of the 
Requesting State and thereafter returns to it. However, the 
competent authorities of the Requesting State may extend the 
safe conduct up to fifteen days if they determine that there is 
good cause to do so. For the United States, the ``competent 
authorities'' for these purposes would be the Central 
Authority.

               Article 11--Transfer of Persons in Custody

    In some criminal cases, a need arises for the testimony in 
one country of a witness in custody in another country. In some 
instances, foreign countries are willing and able to ``lend'' 
witnesses to the United States Government, provided the 
witnesses would be carefully guarded while in the United States 
and returned to the foreign country at the conclusion of the 
testimony. On occasion, the United States Justice Department 
has arranged for consenting federal inmates in the United 
States to be transported to foreign countries to assist in 
criminal proceedings. \22\
---------------------------------------------------------------------------
    \22\ For example, in September, 1986, the United States Justice 
Department and the United States Drug Enforcement Administration 
arranged for four federal prisoners to be transported to the United 
Kingdom to testify for the Crown in Regina v. Dye, Williamson, Ells, 
Davies, Murphy, and Millard, a major narcotics prosecution in ``the Old 
Bailey'' (Central Criminal Court) in London.
---------------------------------------------------------------------------
    Paragraph 1 provides an express legal basis for cooperation 
in these matters. It is based on Article 26 of the United 
States-Switzerland Mutual Legal Assistance Treaty, \23\ which 
in turn is based on Article 11 of the European Convention on 
Mutual Assistance in Criminal Matters. \24\
---------------------------------------------------------------------------
    \23\ U.S.-Switzerlanual Legal Assistance Treaty, supra note 13, 
art. 26.
    \24\ See also Title 18, United States Code, Section 3508, which 
provides for the transfer to the United States of witnesses in custody 
in other States whose testimony is needed at a federal criminal trial. 
It is also consistent with Sections 10 and 23, Dominica Mutual 
Assistance Act 1992.
---------------------------------------------------------------------------
    Paragraph 2 provides that a person in the custody of the 
Requesting State whose presence in the Requested State is 
sought for purposes of assistance under this Treaty may be 
transferred from the Requesting State to the Requested State 
for that purpose if the person consents and if the Central 
Authorities of both States agree. This would also cover 
situations in which a person in custody in the United States on 
a criminal matter has sought permission to travel to another 
country to be present at a deposition being taken there in 
connection with the case. \25\
---------------------------------------------------------------------------
    \25\ See also United States v. King, 552 F.2d 833 (9th Cir. 1976), 
cert. denied, 430 U.S. 966 (1977), where the defendants insisted on 
traveling to Japan to be present at the deposition of certain witnesses 
in prison there.
---------------------------------------------------------------------------
    Paragraph 3 provides express authority for the receiving 
State to maintain such a person in custody throughout the 
person's stay there, unless the sending State specifically 
authorizes release. This paragraph also authorizes the 
receiving State to return the person in custody to the sending 
State, and provides that this return will occur in accordance 
with terms and conditions agreed upon by the Central 
Authorities. The initial transfer of a prisoner under this 
article requires the consent of the person involved and of both 
Central Authorities, but the provision does not require that 
the person consent to be returned to the sending State.
    Once the receiving State has agreed to assist the sending 
State's investigation or proceeding pursuant to this article, 
it would be inappropriate for the receiving State to hold the 
person transferred and require extradition proceedings before 
allowing him to return to the sending State as agreed. 
Therefore, Paragraph (3)(c) contemplates that extradition 
proceedings will not be required before the status quo is 
restored by the return of the person transferred. Paragraph 
(3)(d) states that the person is to receive credit for time 
served while in the custody of the receiving State. This is 
consistent with United States practice in these matters.
    Article 11 does not provide for any specific ``safe 
conduct'' for persons transferred under this article, because 
it is anticipated that the authorities of the two countries 
will deal with such situations on a case-by-case basis. If the 
person in custody is unwilling to be transferred without safe 
conduct, and the Receiving State is unable or unwilling to 
provide satisfactory assurances in this regard, the person is 
free to decline to be transferred.

       Article 12--Location or Identification of Persons or Items

    This article provides for ascertaining the whereabouts in 
the Requested State of persons (such as witnesses, potential 
defendants, or experts) or items if the Requesting State seeks 
such information. This is a standard provision contained in all 
United States mutual legal assistance treaties. The Treaty 
requires only that the Requested State make ``best efforts'' to 
locate the persons or items sought by the Requesting State. 
\26\ The extent of such efforts will vary, of course, depending 
on the quality and extent of the information provided by the 
Requesting State concerning the suspected location and last 
known location.
---------------------------------------------------------------------------
    \26\ This is consistent with Section 201, Dominica Mutual 
Assistance Act 1990.
---------------------------------------------------------------------------
    The obligation to locate persons or items is limited to 
persons or items that are or may be in the territory of the 
Requested State. Thus, the United States would not be obliged 
to attempt to locate persons or items which may be in third 
countries. In all cases, the Requesting State would be expected 
to supply all available information about the last known 
location of the persons or items sought.

                    Article 13--Service of Documents

    This article creates an obligation on the Requested State 
to use its best efforts to effect the service of documents such 
as summons, complaints, subpoenas, or other legal papers 
relating in whole or in part to a Treaty request. This is 
consistent with Dominica law, \27\ and identical provisions 
appear in several U.S. mutual legal assistance treaties.
---------------------------------------------------------------------------
    \27\ Section 25, Dominica Mutual Assistance Act 1990.
---------------------------------------------------------------------------
    It is expected that when the United States is the Requested 
State, service under the Treaty will be made by registered mail 
(in the absence of any request by Dominica to follow a 
specified procedure for service) or by the United States 
Marshal's Service in instances in which personal service is 
requested.
    Paragraph 2 provides that when the documents to be served 
call for the appearance of a person in the Requesting State, 
the documents should be received by the Central Authority of 
the Requested State a reasonable time before the date set for 
any such appearance.
    Paragraph 3 requires that proof of service be returned to 
the Requesting State in the manner specified in the request.

                     Article 14--Search and Seizure

    It is sometimes in the interests of justice for one State 
to ask another to search for, secure, and deliver articles or 
objects needed in the former as evidence or for other purposes. 
United States courts can and do execute such requests under 
Title 28, United States Code, Section 1782, \28\ and the courts 
of Dominica have the power to execute such requests, under 
Section 21 of the Dominica Mutual Assistance Act 1992. This 
article creates a formal framework for handling such requests.
---------------------------------------------------------------------------
    \28\ See e.g., United States ex Rel. Public Prosecutor of 
Rotterdam, Netherlands v. Van Aalst, Case No 84-52-M-01 (M.D. Fla., 
Orlando Div.) (search warrant issued February 24, 1984).
---------------------------------------------------------------------------
    Article 14 requires that the search and seizure request 
include ``information justifying such action under the laws of 
the Requested State.'' This means that normally a request to 
the United States from Dominica will have to be supported by a 
showing of probable cause for the search. A United States 
request to Dominica would have to satisfy the corresponding 
evidentiary standard there, which is ``a reasonable basis to 
believe'' that the specified premises contains articles likely 
to be evidence of the commission of an offense.
    Paragraph 2 is designed to ensure that a record is kept of 
articles seized and of articles delivered up under the Treaty. 
This provision effectively requires that, upon request, every 
official who has custody of a seized item shall certify, 
through the use of Form C appended to this Treaty, the 
continuity of custody, the identity of the item, and the 
integrity of its condition.
    The article also provides that the certificates describing 
continuity of custody will be admissible without additional 
authentication at trial in the Requesting State, thus relieving 
the Requesting State of the burden, expense, and inconvenience 
of having to send its law enforcement officers to the Requested 
State to provided authentication and chain of custody testimony 
each time the Requesting State uses evidence produced under 
this article. As in Articles 8(5) and 9(3), the injunction that 
the certificates be admissible without additional 
authentication leaves the trier of fact free to bar use of the 
evidence itself, in spite of the certificate, if there is some 
reason to do so other than authenticity or chain of custody.
    Paragraph 3 states that the Requested State may require 
that the Requesting State agree to terms and conditions 
necessary to protect the interests of third parties in the item 
to be transferred. This article is similar to provisions in 
many other United States mutual legal assistance treaties. \29\
---------------------------------------------------------------------------
    \29\ See e.g., U.S.-Argentina Mutual Legal Assistance Treaty, supra 
note 5; U.S.-Bahamas Mutual Legal Assistance Treaty, supra note 20; 
U.S.-Canada Mutual Legal Assistance Treaty, supra note 17; U.S.-U.K. 
Mutual Legal Assistance Treaty Concerning the Cayman Islands, Jul. 3, 
1986; U.S.- Hungary Mutual Legal Assistance Treaty, Dec. 1, 1994; U.S.-
Korea Mutual Legal Assistance Treaty, Nov. 23, 1993; U.S.-Panama Mutual 
Legal Assistance Treaty, Apr. 11, 1991; U.S.-Philippines Mutual Legal 
Assistance Treaty, supra note 5; U.S.-Spain Mutual Legal Assistance 
Treaty, Nov. 20, 1990; U.S.-United Kingdom Mutual Legal Assistance 
Treaty, Jan. 6, 1994.
---------------------------------------------------------------------------

                      Article 15--Return of Items

    This article provides that any documents or items of 
evidence furnished under the Treaty must be returned to the 
Requested State as soon as possible. The delegations understood 
that this requirement would be invoked only if the Central 
Authority of the Requested State specifically requests it at 
the time that the items are delivered to the Requesting State. 
It is anticipated that unless original records or articles of 
significant intrinsic value are involved, the Requested State 
will not usually request return of the items, but this is a 
matter best left to development in practice.

            Article 16--Assistance in Forfeiture Proceedings

    A major goal of the Treaty is to enhance the efforts of 
both the United States and Dominica in combating narcotics 
trafficking. One significant strategy in this effort is action 
by United States authorities to seize and confiscate money, 
property, and other proceeds of drug trafficking.
    This article is similar to a number of United States mutual 
legal assistance treaties, including Article 17 in the U.S.-
Canada Mutual Legal Assistance Treaty and Article 15 of the 
U.S.-Thailand Mutual Legal Assistance Treaty. Paragraph 1 
authorizes the Central Authority of one State to notify the 
other of the existence in the latter's territory of proceeds or 
instrumentalities of offenses that may be forfeitable or 
otherwise subject to seizure. The term ``proceeds or 
instrumentalities'' was intended to include things such as 
money, vessels, or other valuables either used in the crime or 
purchased or obtained as a result of the crime.
    Upon receipt of notice under this article, the Central 
Authority of the State in which the proceeds or 
instrumentalities are located may take whatever action is 
appropriate under its law. For instance, if the assets in 
question are located in the United States and were obtained as 
a result of a fraud in Dominica, they could be seized under 18 
U.S.C. 981 in aid of a prosecution under Title 18, United 
States Code, Section 2314, \30\ or be subject to a temporary 
restraining order in anticipation of a civil action for the 
return of the assets to the lawful owner. Proceeds of a foreign 
kidnapping, robbery, extortion or a fraud by or against a 
foreign bank are civilly and criminally forfeitable in the U.S. 
since these offenses are predicate offenses under U.S. money 
laundering laws. \31\ Thus, it is a violation of United States 
criminal law to launder the proceeds of these foreign fraud or 
theft offenses, when such proceeds are brought into the United 
States.
---------------------------------------------------------------------------
    \30\ This statute makes it annse to transport money or valuables in 
interstate or foreign commerce knowing that they were obtained by fraud 
in the United States or abroad.
    \31\ Title 18, United States Code, Section 1956(c)(7)(B).
---------------------------------------------------------------------------
    If the assets are the proceeds of drug trafficking, it is 
especially likely that the Contracting Parties will be able and 
willing to help one another. Title 18, United States Code, 
Section 981(a)(1)(B) allows for the forfeiture to the United 
States of property ``which represents the proceeds of an 
offense against a foreign nation involving the manufacture, 
importation, sale, or distribution of a controlled substance 
(as such term is defined for the purposes of the Controlled 
Substance Act) within whose jurisdiction such offense or 
activity would be punishable by death or imprisonment for a 
term exceeding one year if such act or activity had occurred 
within the jurisdiction of the United States.'' This is 
consistent with the laws in other countries, such as 
Switzerland and Canada; there is a growing trend among nations 
toward enacting legislation of this kind in the battle against 
narcotics trafficking. \32\ The United States delegation 
expects that Article 16 of the Treaty will enable this 
legislation to be even more effective.
---------------------------------------------------------------------------
    \32\ Article 5 of the United Nations Convention Against Illicit 
Traffic in Narcotic Drugs and Psychotropic Substances, calls for the 
States that are party to enact legislation to forfeit illicit drug 
proceeds and to assist one another in such matters. United Nations 
Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic 
Substances, with annex and final act, done at Vienna, Dec. 20, 1988.
---------------------------------------------------------------------------
    Paragraph 2 states that the Parties shall assist one 
another to the extent permitted by their laws in proceedings 
relating to the forfeiture of the proceeds or instrumentalities 
of offenses, to restitution to crime victims, or to the 
collection of fines imposed as sentences in criminal 
convictions. It specifically recognizes that the authorities in 
the Requested State may take immediate action to temporarily 
immobilize the assets pending further proceedings. Thus, if the 
law of the Requested State enables it to seize assets in aid of 
a proceeding in the Requesting State or to enforce a judgment 
of forfeiture levied in the Requesting State, the Treaty 
provides that the Requested State shall do so. The language of 
the article is carefully selected, however, so as not to 
require either State to take any action that would exceed its 
internal legal authority. It does not mandate institution of 
forfeiture proceedings or initiation of temporary 
immobilization in either country against property identified by 
the other if the relevant prosecution authorities do not deem 
it proper to do so. \33\
---------------------------------------------------------------------------
    \33\ In Dominica, unlike the U.S., the law does not currently allow 
for civil forfeiture. However, Dominica law does permit forfeiture in 
criminal cases, and ordinarily a defendant must be convicted in order 
for Dominica to confiscate the defendant's property.
---------------------------------------------------------------------------
    United States law permits the government to transfer a 
share of certain forfeited property to other countries that 
participate directly or indirectly in the seizure or forfeiture 
of the property. Under regulations promulgated by the Attorney 
General, the amount transferred generally reflects the 
contribution of the foreign government in law enforcement 
activity which led to the seizure and forfeiture of the 
property. The law requires that the transfer be authorized by 
an international agreement between the United States and the 
foreign country, and be approved by the Secretary of State. 
\34\ Paragraph 3 is consistent with this framework, and will 
enable a Contracting Party having custody over proceeds or 
instrumentalities of offenses to transfer forfeited assets, or 
the proceeds of the sale of such assets, to the other 
Contracting Party, at the former's discretion and to the extent 
permitted by their respective laws.
---------------------------------------------------------------------------
    \34\ See Title 18, United States Code, Section 981 (i)(1).
---------------------------------------------------------------------------

           Article 17--Compatibility with Other Arrangements

    This article states that assistance and procedures provided 
by this Treaty shall not prevent assistance under any other 
applicable international agreements. Article 17 also provides 
that the Treaty shall not be deemed to prevent recourse to any 
assistance available under the internal laws of either country. 
Thus, the Treaty would leave the provisions of United States 
and Dominica law on letters rogatory completely undisturbed, 
and would not alter any pre-existing agreements concerning 
investigative assistance. \35\
---------------------------------------------------------------------------
    \35\ See e.g., the U.S.-Dominica Agreement for the Exchange of 
Information With Respect to Taxes, signed at Washington October 1, 
1987, entered into force May 9, 1988, T.I.A.S. 11543.
---------------------------------------------------------------------------

                        Article 18--Consultation

    Experience has shown that as the parties to a treaty of 
this kind work together over the years, they become aware of 
various practical ways to make the treaty more effective and 
their own efforts more efficient. This article anticipates that 
the Contracting Parties will share those ideas with one 
another, and encourages them to agree on the implementation of 
such measures. Practical measures of this kind might include 
methods of keeping each other informed of the progress of 
investigations and cases in which Treaty assistance was 
utilized, or the use of the Treaty to obtain evidence that 
otherwise might be sought via methods less acceptable to the 
Requested State. Very similar provisions are contained in 
recent United States mutual legal assistance treaties. \36\ It 
is anticipated that the Central Authorities will conduct annual 
consultations pursuant to this article.
---------------------------------------------------------------------------
    \36\ See e.g., U.S.-Philippines Mutual Legal Assistance Treaty, 
supra note 5, art. 18; U.S.-Canada Mutual Legal Assistance Treaty, 
supra note 17, art. XVIII; U.S.-U.K. Mutual Legal Assistance Treaty 
Concerning the Cayman Islands, supra note 29, art. 18; U.S.-Argentina 
Mutual Legal Assistance Treaty, supra note 5, art. 18.
---------------------------------------------------------------------------

      Article 19--Ratification, Entry Into Force, and Termination

    Paragraph 1 contains standard provisions on the procedure 
for ratification and the exchange of the instruments of 
ratification
    Paragraph 2 provides that the Treaty shall enter into force 
immediately upon the exchange of instruments of ratification.
    Paragraph 3 provides that the Treaty shall apply to any 
request presented pursuant to it after it enters into force, 
even if the relevant acts or omissions occurred before the date 
on which the Treaty entered into force. Provisions of this kind 
are common in law enforcement agreements.
    Paragraph 4 contains standard provisions concerning the 
procedure for terminating the Treaty. Termination shall take 
effect six months after the date of written notification. 
Similar termination provisions are included in other United 
States mutual legal assistance treaties.

 Technical Analysis of the Treaty Between the United States of America 
  and the Republic of Estonia on Mutual Legal Assistance in Criminal 
                                Matters

    On April 2, 1998, the Attorney General of the United States 
and the Ambassador of the Republic of Estonia signed a Treaty 
on Mutual Legal Assistance in Criminal Matters (``the 
Treaty''). The Treaty with Estonia is the third mutual legal 
assistance treaty the United States has concluded with a 
republic of the former Soviet Union.
    In recent years, the United States has signed treaties with 
a substantial number of countries as part of a highly 
successful effort to modernize the legal tools available to law 
enforcement authorities in need of foreign evidence for use in 
criminal cases. The Treaty with Estonia is a major advance in 
the formal law enforcement relationship between the two 
countries and is expected to be a valuable weapon for the 
United States in its efforts to combat transnational terrorism, 
international drug trafficking, and Russian organized crime.
    It is anticipated that the Treaty will be implemented in 
the United States pursuant to the procedural framework provided 
by Title 28, United States Code, Section 1782. The Estonian 
delegation advised that the Treaty would be self-executing in 
Estonia.
    The following technical analysis of the Treaty was prepared 
by the Office of International Affairs, United States 
Department of Justice, and the Office of the Legal Adviser, 
United States Department of State, based upon the negotiating 
notes. The technical analysis includes a discussion of U.S. law 
and relevant practice as of the date of its preparation, which 
are, of course, subject to change. Foreign law discussions 
reflect the state of that law at the time of the negotiations, 
to the best of the drafters* knowledge.

                     Article 1--Scope of Assistance

    Paragraph 1 requires the Parties to provide mutual 
assistance in connection with the investigation, prosecution, 
and prevention of offenses, and in proceedings relating to 
criminal matters.
    The negotiators specifically agreed that the term 
``investigations'' includes grand jury proceedings in the 
United States and similar pre- charge proceedings in Estonia, 
and other legal measures taken prior to the filing of formal 
charges in either State. \1\  The negotiators also agreed that 
``investigations'' includes administrative inquiries by 
agencies or entities with authority to investigate for the 
purpose of determining whether to refer matters to the 
Department of Justice for criminal prosecution. \2\ The term 
``proceedings'' was intended to cover the full range of 
proceedings in a criminal case, including such matters as bail 
and sentencing hearings. \3\ It was also agreed that since the 
phrase ``proceedings related to criminal matters'' is broader 
than the investigation, prosecution or sentencing process 
itself, proceedings covered by the Treaty need not be strictly 
criminal in nature. For example, proceedings to forfeit to the 
government the proceeds of illegal drug trafficking may be 
civil in nature; \4\ yet such proceedine covered by the Treaty.
---------------------------------------------------------------------------
    \1\ The requirement assistance be provided under the Treaty at the 
pre-indictment stage is critical to the U.S., as our investigators and 
prosecutors often need to obtain evidence from foreign countries in 
order to determine whether or not to file criminal charges. This 
obligation is a reciprocal one; the U.S. must assist Estonia under the 
Treaty in connection with investigations prior to charges being filed 
in Estonia. Prior to the 1996 amendments to Section 1782, some U.S. 
courts had interpreted that Section to require that assistance be 
provided in criminal matters only if formal charges have already been 
filed abroad, or are ``imminent,'' or ``very likely.'' McCarthy, ``A 
Proposed Uniform Standard for U.S. Courts in Granting Requests for 
International Judicial Assistance,'' 15 Fordham Int'l Law J. 772 
(1991). The 1996 amendment eliminates this problem, however, by 
amending subsec. (a) to state ``including criminal investigation 
conducted before formal accusation.'' In any event, this Treaty was 
intentionally written to cover criminal investigations that have just 
begun as well as those that are nearly completed; it draws no 
distinction between cases in which charges are already pending, 
``imminent,'' ``very likely,'' or ``very likely very soon.'' Thus, U.S. 
courts should execute requests under the Treaty without examining such 
factors.
    \2\ Although n critical as is assistance for grand jury 
investigations, the U.S. nonetheless relies on agencies and entities 
(e.g., the Internal Revenue Service, the Securities and Exchange 
Commission) to conduct administrative inquiries into potential criminal 
misconduct and, in appropriate instances, to refer the matters for 
criminal prosecution. The negotiators here, as did the negotiators for 
Latvia and for Lithuania, agreed that the U.S. could expect assistance 
in response to requests on behalf of such U.S. agencies and entities 
made for the purpose of determining whether to refer matters for 
criminal prosecution.
    \3\ United States court has interpreted Title 28, United States 
Code, Section 1782, as permitting the execution of a request for 
assistance from a foreign country only if the evidence sought is for 
use in proceedings before an adjudicatory ``tribunal'' in the foreign 
country. In Re Letters Rogatory Issued by the Director of Inspection of 
the Gov't of India, 385 F.2d 1017 (2d Cir. 1967); Fonseca v. 
Blumenthal, 620 F.2d 322 (2d Cir. 1980). This rule poses an unnecessary 
obstacle to the execution of requests concerning matters that are at 
the investigatory stage, or that are customarily handled by 
administrative officials in the Requesting State. Since this paragraph 
of the Treaty specifically permits requests to be made in connection 
with matters not within the jurisdiction of an adjudicatory 
``tribunal'' in the Requesting State, this paragraph accords the courts 
broader authority to execute requests than does Title 28, United States 
Code, Section 1782, as interpreted in the India and Fonseca cases.
    \4\ See 21 U.S.C. Sec.  881; 18 U.S.C. Sec.  1964.
---------------------------------------------------------------------------
    Paragraph 2 lists the major types of assistance 
specifically considered by the Treaty negotiators. Most of the 
items listed in the paragraph are described in detail in 
subsequent articles. The list is not intended to be exhaustive, 
a fact that is signaled by the word ``include'' in the opening 
clause of the paragraph and reinforced by the final 
subparagraph.
    Paragraph 3 specifies that the principle of double or dual 
criminality - - that the obligation of the Requested State to 
provide assistance only attaches where the criminal conduct 
committed in the Requesting State would also constitute a crime 
if committed in the Requested State--is generally inapplicable. 
In other words, the obligation to provide assistance upon 
request arises irrespective of whether the offense for which 
assistance is requested is a crime in the Requested State. 
During the negotiations, the Estonian delegation provided 
assurances that assistance would be available under the Treaty 
to the United States in criminal matters involving such 
offenses as conspiracy; drug trafficking, including continuing 
criminal enterprise (Title 21, United States Code, Section 
848); offenses under the racketeering statutes (Title 18, 
United States Code, Sections 1961-1968); money laundering; 
terrorism; tax crimes, including tax evasion and tax fraud; 
crimes against environmental protection laws; antitrust 
violations; and alien smuggling.
    Paragraph 4 contains a standard provision in United States 
mutual legal assistance treaties, \5\ which states that the 
Treaty is intended solely for government-to-government mutual 
legal assistance. The Treaty is not intended to provide to 
private persons a means of evidence gathering, or to extend 
generally to civil matters. Private litigants in the United 
States may continue to obtain evidence from Estonia by letters 
rogatory, an avenue of international assistance that the Treaty 
leaves undisturbed. Similarly, the paragraph provides that the 
Treaty is not intended to create any right in a private person 
to suppress or exclude evidence provided pursuant to the 
Treaty, or to impede the execution of a request.
---------------------------------------------------------------------------
    \5\ See United States v. Johnpoll, 739 F.2d 702 (2d Cir. 1984), 
cert. denied, 469 U.S. 1075 (1984).
---------------------------------------------------------------------------

                     Article 2--Central Authorities

    Article 2(1) requires that each Party establish a ``Central 
Authority'' for transmission, receipt, and handling of Treaty 
requests. The Central Authority of the United States would make 
all requests to Estonia on behalf of federal, state, and local 
prosecutors and other law enforcement authorities in the United 
States. The Estonian Central Authority would make all requests 
emanating from officials in Estonia.
    Article 2(2) provides that the Attorney General or a person 
designated by the Attorney General shall be the Central 
Authority for the United States. The Attorney General has 
delegated the authority to handle the duties of Central 
Authority under mutual assistance treaties to the Assistant 
Attorney General in charge of the Criminal Division. \6\ 
Article (2)(2) also provides that the Central Authority for the 
Republic of Estonia will be the Ministry of Justice or a person 
designated by the Minister of Justice.
---------------------------------------------------------------------------
    \6\ 28 C.F.R. Sec.  0.64-1. The Assistant Attorney General for the 
Criminal Division has in turn delegated this authority to the Deputy 
Assistant Attorneys General and the Director of the Criminal Division's 
Office of International Affairs, in accordance with the regulation. 
Directive No. 81, 45 Fed. Reg. 79,758 (1980), as corrected at 48 Fed. 
Reg. 54,595 (1983). That delegation was subsequently extended to the 
Deputy Directors of the Office of International Affairs. 59 Fed. Reg. 
42,160 (1994).
---------------------------------------------------------------------------
    Article 2(3) provides that the Central Authorities shall 
communicate directly with one another for purposes of making 
and executing requests. It is anticipated that such 
communication will be accomplished by telephone, telefax, or 
any other means, at the option of the Central Authorities.

                  Article 3--Limitations on Assistance

    This article specifies the limited classes of cases in 
which assistance may be denied under the Treaty.
    Paragraph (1)(a) permits the Requested State to deny a 
request if it relates to an offense under military law that 
would not be an offense under ordinary criminal law. Similar 
provisions appear in many other U.S. mutual legal assistance 
treaties.
    Paragraph 1(b) permits denial of a request if it involves a 
political offense. It is anticipated that the Central 
Authorities will employ jurisprudence similar to that used in 
the extradition treaties for determining what is a ``political 
offense.'' These restrictions are similar to those found in 
other mutual legal assistance treaties.
    Paragraph (1)(c) permits the Central Authority of the 
Requested State to deny a request if execution of the request 
would prejudice the security or similar essential interests of 
that State. All United States mutual legal assistance treaties 
contain provisions allowing the Requested State to decline to 
execute a request if execution would prejudice its essential 
interests.
    The delegations agreed that the word ``security'' would 
include cases where assistance might involve disclosure of 
information that is classified for national security reasons. 
It is anticipated that the Department of Justice, in its role 
as Central Authority for the United States, would work closely 
with the Department of State and other Government agencies to 
determine whether to execute a request that falls into this 
category.
    The delegations agreed that the phrase ``essential 
interests'' is intended to limit narrowly the class of cases in 
which assistance may be denied. It is not enough that the 
Requesting State's case is one that would be inconsistent with 
public policy had it been brought in the Requested State. 
Rather, the Requested State must be convinced that execution of 
the request would seriously conflict with significant public 
policy. An example is a request involving prosecution by the 
Requesting State of conduct that occurred in the Requested 
State that is constitutionally protected in the Requested 
State.
    The delegations further agreed that ``essential interests'' 
may include interests unrelated to national military or 
political security, and may be invoked if the execution of a 
request would violate essential interests related to the 
fundamental purposes of the Treaty. For example, one 
fundamental purpose of the Treaty is to enhance law enforcement 
cooperation. The attainment of that goal would be hampered if 
sensitive law enforcement information available under the 
Treaty were to fall into the wrong hands. Accordingly, the 
United States Central Authority may invoke paragraph 1(c) to 
decline to provide sensitive or confidential drug-related 
information pursuant to a Treaty request whenever it 
determines, after appropriate consultation with law 
enforcement, intelligence, and foreign policy agencies, that a 
senior foreign government official who likely will have access 
to the information is engaged in or facilitates the production 
or distribution of illegal drugs, and is using the request to 
the prejudice of a United States investigation or prosecution. 
\7\
---------------------------------------------------------------------------
    \7\ This is consistent with the Senate resolution of advice and 
consent to ratification, e.g., of the mutual legal assistance treaties 
with Mexico, Canada, Belgium, Thailand, the Bahamas, and the United 
Kingdom Concerning the Cayman Islands. Cong. Rec. 13884 (1989) (treaty 
citations omitted). See also Staff of Senate Comm. on Foreign 
Relations, 100th Cong., 2d Sess., Mutual Legal Assistance Treaty 
Concerning the Cayman Islands 67 (1988) (testimony of Mark M. Richard, 
Deputy Assistant Attorney General, Criminal Division, Department of 
Justice).
---------------------------------------------------------------------------
    Paragraph 1(d) permits the denial of a request if it is not 
made in conformity with the Treaty.
    Paragraph 2 is similar to Article 3(2) of the U.S.-
Switzerland Mutual Legal Assistance Treaty, \8\ and obliges the 
Requested State to consider imposing appropriate conditions on 
its assistance in lieu of denying a request outright pursuant 
to the first paragraph of the article. For example, a 
Requesting State might request information that could be used 
either in a routine criminal case (which would be within the 
scope of the Treaty) or in a politically motivated prosecution 
(which would be subject to refusal). This paragraph permits the 
Requested State to provide the information on the condition 
that it be used only in the routine criminal case. Naturally, 
the Requested State would notify the Requesting State of any 
proposed conditions before actually delivering the evidence in 
question, thereby according the Requesting State an opportunity 
to indicate whether it is willing to accept the evidence 
subject to the conditions. If the Requesting State does accept 
the evidence subject to the conditions, it must honor the 
conditions.
---------------------------------------------------------------------------
    \8\ U.S.-Switzerland Mutual Legal Assistance Treaty, May 25, 1973, 
art. 26, 27 U.S.T. 2019, T.I.A.S. No. 8302, 1052 U.N.T.S. 61.
---------------------------------------------------------------------------
    Paragraph 3 effectively requires that the Central Authority 
of the Requested State promptly notify the Central Authority of 
the Requesting State of the grounds for any denial of 
assistance. This ensures that, when a request is only partly 
executed, the Requested State will provide some explanation for 
not providing all of the information or evidence sought. This 
should avoid misunderstandings, and enable the Requesting State 
to better prepare its requests in the future.

                Article 4--Form and Contents of Requests

    Paragraph 1 requires that requests be in writing, except 
that the Central Authority of the Requested State may accept a 
request in another form in ``urgent situations.'' A request in 
another form must be confirmed in writing within ten days 
unless the Central Authority of the Requested State agrees 
otherwise, and the request shall be in the language or 
translated into the language of the Requested State unless 
otherwise agreed.
    Paragraph 2 lists the four kinds of information deemed 
crucial to the efficient operation of the Treaty that must be 
included in each request. Paragraph 3 outlines kinds of 
information that are important but not always crucial, and 
should be provided ``to the extent necessary and possible.'' In 
keeping with the intention of the Parties that requests be as 
simple and straightforward as possible, there is no requirement 
under the Treaty that a request be legalized or certified in 
any particular manner.

                    Article 5--Execution of Requests

    Paragraph 1 requires each Central Authority promptly to 
execute requests. The negotiators intended that the Central 
Authority, upon receiving a request, first review it, then 
promptly notify the Central Authority of the Requesting State 
if the request does not appear to comply with the Treaty's 
terms. Where the request satisfies the Treaty's requirements 
and the assistance sought can be provided by the Central 
Authority itself, the request will be fulfilled immediately. 
Where the request meets the Treaty's requirements but its 
execution requires action by some other entity in the Requested 
State, the Central Authority will promptly transmit the request 
to the correct entity for execution. When the United States is 
the Requested State, it is anticipated that the Central 
Authority will transmit most requests to federal investigators, 
prosecutors, or judicial officials for execution if the Central 
Authority deems it appropriate to do so.
    Paragraph 1 further authorizes and requires the federal, 
state, or local agency or authority selected by the Central 
Authority to do everything within its power and take whatever 
action would be necessary to execute the request. This 
provision is not intended or understood to authorize the use of 
the grand jury in the United States for the collection of 
evidence pursuant to a request from Estonia. Rather, it is 
anticipated that when a request from Estonia requires 
compulsory process for execution, the United States Department 
of Justice would ask a federal court to issue the necessary 
process under Title 28, United States Code, Section 1782, and 
the provisions of the Treaty. \9\
---------------------------------------------------------------------------
    \9\ This paragraph of the Treaty specifically authorizes United 
States courts to use all of their powers to issue subpoenas and other 
process to satisfy a request under the Treaty.
---------------------------------------------------------------------------
    The third sentence in Article 5(1) authorizes the courts or 
competent authorities of the Requested State ``to issue 
subpoenas, search warrants, or other orders necessary to 
execute the request.'' The term ``competent authorities'' 
refers to the fact that in Estonia, public prosecutors, as well 
as courts, are empowered under Estonian law to issue subpoenas, 
search warrants, or other orders necessary to execute requests. 
In Estonia public prosecutors almost exclusively will execute 
requests from the United States, whereas in the United States, 
execution can be entrusted to any appropriate competent 
authority in the executive or judiciary branch of government, 
federal or state. When a request from Estonia requires 
compulsory process for execution, it is anticipated that the 
competent executive authority in the United States will issue 
the necessary compulsory process itself, \10\ or ask a court to 
do so.
---------------------------------------------------------------------------
    \10\ For example, the Securities and Exchange Commission has the 
power to issue compulsory process to obtain evidence to execute a 
request for assistance from certain foreign authorities.
---------------------------------------------------------------------------
    Paragraph 2 reconfirms that the Central Authority of the 
Requested State shall arrange for requests from the Requesting 
State to be presented to the appropriate authority in the 
Requested State for execution. In practice, the Central 
Authority for the United States will transmit the request with 
instructions for execution to an investigative or regulatory 
agency, the office of a prosecutor, or another governmental 
entity. If execution requires the participation of a court, the 
Central Authority will select an appropriate representative, 
generally a federal prosecutor, to present the matter to a 
court. Thereafter, the prosecutor will represent the United 
States, acting to fulfill its obligations to Estonia under the 
Treaty by executing the request. Upon receiving the court's 
appointment as a commissioner, the prosecutor/commissioner will 
act as the court's agent in fulfilling the court's 
responsibility to do ``everything in [its] power'' to execute 
the request. In short, the prosecutor may only exercise the 
court's authority in using compulsory measures if he receives 
permission from the court to do so.
    The situation with respect to Estonia is different. The 
U.S. Central Authority will transmit all requests to the 
Estonian Ministry of Justice, which will assign each request to 
an appropriate public prosecutor. Public prosecutors in Estonia 
have authority to order compulsory process, including, but not 
limited to, requiring a witness to appear to provide testimony, 
issuing subpoenas to compel the production of documents or 
other evidence, and ordering a search and seizure. The exercise 
of this authority by Estonian prosecutors does not require the 
consent of a court. In other words, unlike in the United 
States, a Estonian prosecutor may execute a foreign request 
seeking compulsory process without the assistance of the 
Estonian courts.
    Paragraph 3 provides that requests shall be executed in 
accordance with the laws of the Requested State except to the 
extent that the Treaty provides otherwise. Thus, for example, 
the provision in Article 8(4) that claims of privilege under 
the law of the Requesting State are to be referred back to the 
courts of the Requesting State would take precedence over a 
contrary provision in domestic law. To illustrate, 28 U.S.C. 
1782 permits, as a basis for not compelling testimony or 
production of evidence, deference to privileges legally 
applicable in a Requesting State. To the extent that this 
provision were considered to be in conflict with the Treaty, 
the Treaty provision would prevail.
    The second sentence of Paragraph 3 makes clear that the 
Treaty does not authorize the use in the Requested State of 
procedures that would otherwise be unlawful in the Requested 
State.
    Paragraph 4 states that a request for assistance need not 
be executed immediately when the Central Authority of the 
Requested State determines that execution would interfere with 
an ongoing criminal investigation or proceeding in the 
Requested State. The Central Authority of the Requested Party 
may, in its discretion, take such preliminary action as deemed 
advisable to obtain or preserve evidence that might otherwise 
be lost before the conclusion of the investigation or legal 
proceeding in that State. The paragraph also allows the 
Requested State to provide the information sought to the 
Requesting State subject to conditions needed to avoid 
interference with the Requested State's proceeding or 
investigation.
    It is anticipated that some United States requests for 
assistance may contain information that under United States law 
must be kept confidential. For example, it may be necessary to 
set out information that is ordinarily protected by Rule 6(e), 
Federal Rules of Criminal Procedure, in the course of 
explaining ``the subject matter and nature of the 
investigation, prosecution, or proceeding'' as required by 
Article 4(2)(b). This paragraph enables the Requesting State to 
call upon the Requested State to keep the information in the 
request confidential. \11\ If the Requested State cannot 
execute the request without disclosing the information in 
question (as might be the case if execution requires a public 
judicial proceeding in the Requested State), or if for some 
other reason this confidentiality cannot be assured, the Treaty 
obliges the Requested State to so indicate, thereby giving the 
Requesting State an opportunity to withdraw the request rather 
than risk jeopardizing an investigation or proceeding by public 
disclosure of the information.
---------------------------------------------------------------------------
    \11\ This provision is similar to language in other United States 
mutual legal assistance treaties. See, e.g., U.S.- Mexico Mutual Legal 
Assistance Treaty, Dec. 9, 1987, art. 4(5); U.S.-Canada Mutual Legal 
Assistance Treaty, Mar. 18, 1985, art. 6(5); U.S.-Italy Mutual Legal 
Assistance Treaty, Nov. 9, 1982, art. 8(2); U.S.-Philippines Mutual 
Legal Assistance Treaty, Nov. 13, 1994, art. 5(5).
---------------------------------------------------------------------------
    Paragraph 6 states that the Central Authority of the 
Requested State shall respond to reasonable inquiries by the 
Requesting State concerning progress of its request. This is to 
encourage open communication between the Central Authorities in 
monitoring the status of specific requests.
    Paragraph 7 requires that the Central Authority of the 
Requested State promptly notify the Central Authority of the 
Requesting State of the outcome of the execution of a request. 
If the assistance sought is delayed or postponed, the Central 
Authority of the Requested State must also explain the reasons 
to the Central Authority of the Requesting State. For example, 
if the evidence sought could not be located, the Central 
Authority of the Requested State would report that fact to the 
Central Authority of the Requesting State.

                            Article 6--Costs

    Article 6 obligates the Requested State to pay all costs 
relating to the execution of a request except for those costs 
enumerated in the article. The enumerated exceptions are: fees 
of experts; translation, interpretation and transcription 
costs; and allowances and expenses related to travel of persons 
traveling either in the Requested State for the convenience of 
the Requesting State or pursuant to Articles 10 and 11. This 
provision is consistent with similar provisions in other United 
States mutual legal assistance treaties. \12\
---------------------------------------------------------------------------
    \12\ See, e.g., U.S.-Canada Mutual Legal Assistance Treaty, supra 
note 11, art. 8; U.S.-Philippines Mutual Legal Assistance Treaty, supra 
note 11, art. 6.
---------------------------------------------------------------------------
    Costs ``relating to'' execution means the costs normally 
incurred in transmitting a request to the executing authority, 
notifying witnesses and arranging for their appearances, 
producing copies of the evidence, conducting a proceeding to 
compel execution of the request, etc. The negotiators agreed 
that costs ``relating to'' execution to be borne by the 
Requested State do not include expenses associated with the 
travel of investigators, prosecutors, counsel for the defense, 
or judicial authorities to, for example, question a witness or 
take a deposition in the Requested State pursuant to Article 
8(3), or travel in connection with Articles 10 and 11.
    Paragraph 2 of this article provides that if it becomes 
apparent during the execution of a request that complete 
execution of a request would require extraordinary expenses, 
then the Central Authorities shall consult to determine the 
terms and conditions under which execution may continue.

                     Article 7--Limitations on Use

    Under Article 4(2)(d), the Requesting State must specify 
the purpose for which the information or evidence sought under 
the Treaty is needed. Under Article 7(1), the Central Authority 
of the Requested State may require that information provided 
under the Treaty be used only for the purpose stated in the 
request unless the Requested State provides its prior consent. 
If the Requested State limits the subsequent use of the 
information or evidence it provides, then the Requesting State 
must comply with the requirement.
    Both delegations agreed that the Central Authority of the 
Requested State will not routinely require use limitations 
under paragraph 1. Rather, it is expected that such limitations 
will be requested sparingly, only when there is good reason to 
restrict the use of the evidence.
    Paragraph 2 authorizes the Requested State to request that 
the information or evidence it provides to the Requesting State 
be kept confidential. This paragraph operates in situations 
outside Article 3 where the Requested State has no basis to 
deny or limit assistance. For instance, the Requested State may 
wish to cooperate with the investigation in the Requesting 
State but to limit access to information that would unduly 
prejudice the interests of persons not connected with the 
matter being investigated. Paragraph 2 permits the request for 
confidentiality. If the Requesting State accepts the assistance 
with this condition, it is required to make ``best efforts'' to 
comply with it. This ``best efforts'' language was used because 
the purpose of the Treaty is the production of evidence for use 
at trial, and that purpose would be frustrated if the Requested 
State could routinely permit the Requesting State to see 
valuable evidence, but impose confidentiality restrictions that 
prevent the Requesting State from using it. If assistance is 
provided with a condition under this paragraph, the United 
States could deny public disclosure under the Freedom of 
Information Act.
    Situations could arise in which the United States received 
information or evidence under the Treaty with respect to one 
case that was exculpatory of a defendant in another case and 
might be obliged to share the evidence or information with the 
defense. Brady v. Maryland, 373 U.S. 83 (1963). Therefore, 
Paragraph 3 provides that nothing in Article 7 would preclude 
the use or disclosure of information or evidence to the extent 
that such information or evidence is exculpatory to a defendant 
in a criminal prosecution.
    Paragraph 4 states that once information or evidence 
obtained under the Treaty has been revealed to the public ``in 
the normal course of the proceeding for which it was 
provided,'' the Requesting State is free to use it for any 
purpose. Once so revealed to the public, it effectively becomes 
part of the public domain, a matter of common knowledge, 
perhaps even be described in the press. The negotiators noted 
that once this has occurred, it is practically impossible for 
the Central Authority of the Requesting State to block the use 
of the information by third parties.
    It should be noted that under Article 1(4), the 
restrictions outlined in Article 7 are for the benefit of the 
Parties, and the invocation and enforcement of these provisions 
are left entirely to the Parties. If a person alleges that a 
United States authority seeks to use information or evidence 
obtained from Estonia in a manner inconsistent with this 
Article, the person can so inform the Central Authority of 
Estonia for its consideration as a matter between the Parties.

        Article 8--Testimony or Evidence in the Requested State

    Paragraph 1 states that a person in the Requested State 
from whom testimony or evidence is sought shall be compelled, 
if necessary, to appear and testify or produce items, including 
documents and records. The compulsion contemplated by this 
article can be accomplished by subpoena or any other means 
available under the law of the Requested State.
    In Estonia, public prosecutors and courts each have the 
power to compel testimony or documents from individuals or 
entities in connection with both domestic and foreign 
proceedings. The authority of the public prosecutor to issue 
subpoenas and to use other compulsory measures exists 
independently of the courts. In the United States, a prosecutor 
asks that a federal district court appoint the prosecutor as a 
commissioner, thereby empowering the prosecutor to issue 
subpoenas on behalf of the foreign authority. Moreover, the 
prosecutor/commissioner must return to the court for 
enforcement in the event of noncompliance.
    The second sentence of paragraph 1 provides that a person 
who gives false testimony, either orally or in writing, in 
execution of a request shall be subject to prosecution in the 
Requested State in accordance with the criminal laws of that 
State. The criminal laws of both the U.S. and Estonia contain 
provisions that sanction the production of false evidence. The 
negotiators expect that, with respect to a falsehood made in 
execution of a request, the Requesting State could ask the 
Requested State to prosecute and provide the Requested State 
with the information or evidence needed to prove the falsehood.
    Paragraph 2 requires that, upon request, the Requested 
State shall furnish information in advance about the date and 
place of the taking of testimony or evidence.
    Paragraph 3 provides that any persons specified in the 
request, which may include the defendant and defense counsel in 
criminal cases, shall be permitted by the Requested State to be 
present during the execution of a request and pose questions 
during the taking of testimony. Neither delegation foresaw a 
problem in accommodating the needs for confrontation under 
either system. Moreover, the Estonian negotiators also assured 
the U.S. delegation that a stenographer could be present at 
depositions in Estonia. The presence of a stenographer is 
generally critical to preserve testimony of witnesses inasmuch 
as the United States practice is to introduce into evidence a 
verbatim transcript of out-of-court testimony rather than a 
summary or abbreviated form of the testimony as is the practice 
in civil law jurisdictions.
    Paragraph 4 deals with claims of immunity, incapacity, and 
privilege based on the law of the Requesting State but raised 
in the Requested State. The immunities and privileges available 
to witnesses under the law of the Requested State are not 
affected by paragraph 4. No person will be compelled in the 
Requested State to furnish information or evidence if he has a 
right not to do so under the law of the Requested State. Thus, 
a witness questioned in the United States pursuant to a request 
from Estonia, in addition to any applicable constitutional 
privilege (e.g., self-incrimination, to the extent applicable 
in the context of evidence being taken for foreign 
proceedings), may claim a testimonial privilege (e.g., 
attorney-client) legally recognized under United States law. 
Likewise, a witness testifying in Estonia may raise any of the 
similar privileges available under Estonian law. However, 
paragraph 4 does require that if a witness attempts to assert 
in the Requested State a privilege that is unique to the 
Requesting State, the Requested State will nonetheless take the 
requested evidence and turn it over to the Requesting State 
along with notice that it was obtained over a claim of 
privilege. The applicability of the privilege can then be 
determined in the Requesting State, where the scope of the 
privilege and the legislative and policy reasons underlying the 
privilege are best understood. A similar provision appears in 
many U.S. mutual legal assistance treaties. \13\
---------------------------------------------------------------------------
    \13\ See, e.g., U.S.-Netherlands Mutual Legal Assistance Treaty, 
June 12, 1981, art. 5(1), T.I.A.S. No. 10734, 1359 U.N.T.S. 209; U.S.-
Bahamas Mutual Legal Assistance Treaty, June 12 & Aug. 18, 1987, art. 
9(2); U.S.-Mexico Mutual Legal Assistance Treaty; supra note 11, art. 
7(2); U.S.- Philippines Mutual Legal Assistance Treaty, supra note 11, 
art. 8(4).
---------------------------------------------------------------------------
    Paragraph 5 is primarily for the benefit of the United 
States. The United States evidentiary system requires that 
evidence that is to be used as proof in a legal proceeding be 
authenticated as a precondition to admissibility. This 
paragraph provides that evidence produced in the Requested 
State pursuant to Article 8 may be authenticated by an 
``attestation.'' Although the provision is sufficiently broad 
to include the authentication of ``[e]vidence produced . . . 
pursuant to this Article,'' the negotiators focused on and were 
primarily concerned with business records. In order to ensure 
the United States that business records provided by Estonia 
pursuant to the Treaty could be authenticated in a manner 
consistent with existing U.S. law, the negotiators crafted Form 
A to track the language of Title 18, United States Code, 
Section 3505, the foreign business records authentication 
statute. If the Estonian authorities properly complete, sign, 
and attach Form A to executed documents, or submit Form B 
certifying the absence or non-existence of business records, a 
U.S. judge may admit the records into evidence without the 
appearance at trial of a witness. The admissibility provided by 
this paragraph provides for an exception to the hearsay rule; 
however, admissibility extends only to authenticity and not to 
relevance, materiality, etc., of the evidence. Whether the 
evidence is, in fact, admitted is a determination within the 
province of the judicial authority presiding over the 
proceeding for which the evidence is provided.

                      Article 9--Official Records

    Paragraph 1 obliges each Party to furnish the other with 
copies of publicly available records, including documents or 
information in any form, possessed by an executive, 
legislative, or judicial authority in the Requested State.
    Paragraph 2 provides that the Requested State may provide 
copies of any records, including documents or information in 
any form, that are in the possession of an executive, 
legislative, or judicial authority in that State, but that are 
not publicly available, to the same extent and under the same 
conditions as such copies would be available to its own law 
enforcement or judicial authorities. The Requested State may in 
its discretion deny a request for records that are not publicly 
available entirely or in part.
    The delegations discussed whether this article should serve 
as a basis for exchange of information in tax matters. It was 
the intention of the United States delegation that the United 
States be able to provide assistance under the Treaty in tax 
matters, and such assistance could include tax return 
information when appropriate. The United States delegation was 
satisfied after discussion that this Treaty is a ``convention 
relating to the exchange of tax information'' for purposes of 
Title 26, United States Code, Section 6103(k)(4), and the 
United States would have the discretion to provide tax return 
information to Estonia under this article in appropriate cases. 
\14\
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    \14\ Under 26 U.S.C. 6103(i) information in the files of the 
Internal Revenue Service (generally protected from disclosure under 26 
U.S.C. 6103) may be disclosed to federal law enforcement personnel in 
the United States for use in a non-tax criminal investigations or 
proceedings, under certain conditions and pursuant to certain 
procedures. The negotiators agreed that this Treaty (which provides 
assistance both for tax offenses and in the form of information in the 
custody of tax authorities of the Requested State) is a ``convention . 
. . relating to the exchange of tax information'' under Title 26, 
United States Code, Section 6103(k)(4), pursuant to which the United 
States may exchange tax information with treaty partners. Thus, the 
Internal Revenue Service may provide tax returns and return information 
to Estonia through this Treaty when, in a criminal investigation or 
prosecution, the Estonian authority on whose behalf the request is made 
can meet the same conditions required of United States law enforcement 
authorities under Title 26, United States Code, Sections 6103(h) and 
(i). As an illustration, an Estonian request for tax returns to be used 
in a non-tax criminal investigation, in accordance with 26 U.S.C. 
6103(i)(1)(A), would have to specify that the Estonian law enforcement 
authority is:
    personally and directly engaged in--
    (i) preparation for any judicial or administrative proceeding 
pertaining to the enforcement of a specifically designated Estonian 
criminal statute (not involving tax administration) to which Estonia is 
or may be a party.
    (ii) any investigation which may result in such a proceeding, or
    (iii) any Estonian proceeding pertaining to enforcement of such a 
criminal statute to which Estonia is or may be a party. (See 26 U.S.C. 
6103(i)(1)(A).)
    The request would have to be presented to a federal district court 
judge or magistrate for an order directing the Internal Revenue Service 
to disclose the tax returns as specified at 26 U.S.C. 6103(i)(1)(B). 
Before issuing such an order, the judge or magistrate would have to 
determine, also in accordance with 26 U.S.C. 6103(i)(1)(B), that:
    (i) there is reasonable cause to believe, based upon information 
believed to be reliable, that a specific criminal act has been 
committed,
    (ii) there is reasonable cause to believe that the return or return 
information is or may be relevant to a matter relating to the 
commission of such act, and
    (iii) the return or return information is sought exclusively for 
use in an Estonian criminal investigation or proceeding concerning such 
act, and the information sought to be disclosed cannot reasonably be 
obtained, under the circumstances, from another source.
    In other words, the Estonian law enforcement authorities seeking 
tax returns would be treated as if they were United States law 
enforcement authorities--undergo the same access procedure where they 
would be held to the same standards.
---------------------------------------------------------------------------
    Paragraph 3 is primarily for the benefit of the United 
States. It provides for the authentication of records produced 
pursuant to this Article by an executive, legislative, or 
judicial authority responsible for their maintenance. Such 
authentication is to be effected through the use of Form C 
appended to the Treaty. If the Estonian authorities properly 
complete, sign, and attach Form C to executed documents, or 
submit Form D certifying the absence or non-existence of such 
records, a U.S. judge may admit the records into evidence as 
self-authenticating under Rule 902(3) of the Federal Rules of 
Evidence. The admissibility provided by this paragraph provides 
for an exception to the hearsay rule; however, admissibility 
extends only to authenticity and not to relevance, materiality, 
etc., of the evidence. Whether the evidence is, in fact, 
admitted is a determination within the province of the judicial 
authority presiding over the proceeding for which the evidence 
is provided.

           Article 10--Appearance Outside the Requested State

    Paragraph 1 provides that upon request, the Requested State 
shall invite persons who are located in its territory to travel 
to the Requesting State to appear before an appropriate 
authority there. The Central Authority of the Requested State 
shall notify the Requesting State of the invitee's response. An 
appearance in the Requesting State under this article is not 
mandatory, and the prospective witness may refuse the 
invitation.
    Paragraph 2 concerns travel expenses, previously covered 
under Article 6. Normally such expenses include the costs of 
transportation, room, and board. Paragraph 2 also provides that 
the person who agrees to travel to the Requesting State may 
request and receive an advance for expenses. The advance may be 
provided through the embassy or a consulate of the Requesting 
State.
    Paragraph 3 provides that the Central Authority of the 
Requesting State may, in its discretion, determine that a 
person appearing in the Requesting State pursuant to this 
Article shall not be subject to service of process, or be 
detained or subjected to any restriction of personal liberty, 
by reason of any acts or convictions that preceded the person's 
departure from the Requested State. Most U.S. mutual legal 
assistance treaties anticipate that the Central Authority will 
determine whether to extend such safe conduct. This ``safe 
conduct'' is limited to acts or convictions that preceded the 
witness's departure from the Requested State. It is understood 
that this provision would not prevent the prosecution of a 
person for perjury or any other crime committed while in the 
Requesting State.
    Paragraph 4 provides for expiration of the ``safe conduct'' 
seven days after notification between Central Authorities that 
the person's presence is no longer required. Paragraph 4 is 
intended to further provide that the Central Authority of the 
Requesting State may, in its discretion, extend this period 
(``for up to fifteen days if it determines that there is good 
cause to do so''). (The Treaty erroneously and inadvertently 
states that the Requested State may extend the ``safe 
conduct,'' when what was intended was that the Requesting State 
may do so. This error is being corrected by means of an 
exchange of notes between the United States and Estonia.)

               Article 11--Transfer of Persons in Custody

    The need sometimes arises for a person in custody in one 
country to assist in a criminal matter--generally to give 
testimony--in another country. The country maintaining custody 
may be willing and able to ``lend'' the person provided the 
person is guarded while absent from the lending country and 
returned to that country when no longer needed in the other 
country. On occasion, the United States Justice Department has 
arranged for consenting federal inmates in the United States to 
be transported to foreign countries to assist in criminal 
proceedings. \15\
---------------------------------------------------------------------------
    \15\ For example, in September, 1986, the United States Justice 
Department and the United States Drug Enforcement Administration 
arranged for four federal prisoners to be transported to the United 
Kingdom to testify for the Crown in Regina v. Dye, Williamson, Ells, 
Davies, Murphy, and Millard, a major narcotics prosecution in ``the Old 
Bailey'' (Central Criminal Court) in London.
---------------------------------------------------------------------------
    Paragraph 1 provides an express legal basis for cooperation 
by means of temporary transfers. Although the provision is 
based on Article 26 of the United States-Switzerland Mutual 
Legal Assistance Treaty, \16\ which in turn is based on Article 
11 of the European Convention on Mutual Assistance in Criminal 
Matters, \17\ paragraph 1 expands the geographic scope and the 
purpose for the transfer to authorize a transfer ``outside the 
Requested State,'' which could also be to a third State.
---------------------------------------------------------------------------
    \16\ U.S.-Switzerlanual Legal Assistance Treaty, supra note 8, art. 
26.
    \17\ See also Title 18, United States Code, Section 3508, which 
provides for the transfer to the United States of witnesses in custody 
in other States whose testimony is needed at a federal criminal trial.
---------------------------------------------------------------------------
    Paragraph 2 provides that a person in the custody of the 
Requesting State whose presence in the Requested State is 
sought for purposes of assistance under this Treaty may be 
transferred from the Requesting State to the Requested State if 
the person consents and if the Central Authorities of both 
States agree. This would also cover situations in which a 
person in custody in the United States on a criminal matter has 
sought permission to travel to another country to be present at 
a deposition being taken there in connection with the case. 
\18\
---------------------------------------------------------------------------
    \18\ See also United States v. King, 552 F.2d 833 (9th Cir. 1976), 
cert. denied, 430 U.S. 966 (1977), where the defendants insisted on 
traveling to Japan to be present at the deposition of certain witnesses 
in prison there.
---------------------------------------------------------------------------
    Paragraph 3(a) provides express authority for, and imposes 
an obligation upon, the receiving State to maintain the person 
in custody until the purpose of the transfer is accomplished, 
unless otherwise authorized by the sending State.
    Paragraph 3(b) provides that the receiving State must 
return the transferred person to the custody of the sending 
State as soon as circumstances permit or as otherwise agreed by 
the Central Authorities. The transferred person need not 
consent to the return to the sending State, only to the 
original transfer.
    Paragraph 3(c) provides that the sending State need not 
initiate extradition proceedings to secure return of the person 
transferred. For the United States, this paragraph comports 
with Title 18, United States Code, Section 3508. This provision 
of the Treaty will be particularly helpful to the United States 
in the event that a person is transferred from Estonia to the 
United States and files a habeas corpus in an attempt to 
prevent a return to Estonia in the absence of an extradition 
request.
    Paragraph 3(d) states that the person transferred will 
receive credit in the sending State for the time in custody in 
the receiving State.
    Paragraph 3(e) provides that, where the receiving State is 
a third state, the Requesting State shall make all arrangements 
necessary to meet the requirements of this paragraph.
    Paragraph 4 states that safe conduct for the transferred 
person may be provided for by the Central Authority of the 
receiving State under the same terms set forth in Article 10, 
except that the person shall be kept in custody for the offense 
for which the person is incarcerated in the sending State.

               Article 12--Transit of Persons in Custody

    Most modern extradition treaties provide for cooperation in 
the transit of persons being extradited, \19\ although the 
extradition treaty currently in force between the United States 
and Estonia \20\ is silent on this topic. Article 12 is not 
focused on the transit of extradited persons. Rather, this 
article provides a basis for mutual cooperation with respect to 
prisoners who are involved in a criminal investigation or 
prosecution other than as extradited fugitives (e.g., as 
witnesses appearing to testify or as defendants appearing to be 
present at a proceeding).
---------------------------------------------------------------------------
    \19\ See, e.g., U.S.-Hungary Extradition Treaty, Dec. 1, 1994, art. 
19; U.S.-Japan Extradition Treaty, Mar. 3, 1978, art. 15, 31 U.S.T. 
892, T.I.A.S. 9625.
    \20\ See U.S.-Estonia Extradition Treaty, Nov. 8, 1923, 43 Stat. 
1849, TS 703, and the Supplementary Treaty of October 10, 1934, 49 
Stat. 3190, TS 888.
---------------------------------------------------------------------------
    Paragraph 1 gives each Party the power to authorize transit 
through its territory of a person being transferred to or from 
the other State from or to a third State. Paragraph 2 obligates 
each Party to keep in custody a person in transit during the 
transit period. Requests for transit are to contain a 
description of the person being transported and a brief 
statement of the facts of the matter for which the person is 
traveling.
    Under this article, no advance authorization is needed if 
the person in custody is in transit to one of the Parties and 
is traveling by aircraft and no landing is scheduled in the 
territory of the other. Should an unscheduled landing occur, a 
request for transit may be required at that time, and the 
Requested State may grant the request if, in its discretion, it 
is deemed appropriate to do so. Where transit is granted, the 
person in transit shall be kept in custody until such time as 
the person may continue in transit out of the Requested State.

       Article 13--Location or Identification of Persons or Items

    This article requires each Party to use its ``best 
efforts'' to locate or identify persons (e.g., witnesses) or 
items (e.g., evidence) in relation to an investigation or 
proceeding covered by the Treaty. The negotiators contemplated 
that ``best efforts'' would vary depending on the information 
provided in the request, in accordance with Article 4, 
regarding the location of the person or item. When little 
information is provided--for example, when the request merely 
states that a potential witness may be located in the Requested 
State--the Requested State is not expected to exert much 
effort. As the level of information increases, so does the 
obligation to search for the person or item.
    The obligation to locate persons or items is limited to 
persons or items that are or may be in the territory of the 
Requested State. Thus, the United States would not be obliged 
to attempt to locate persons or items in third countries. In 
all instances, the Requesting State is expected to supply all 
available information about the last known location of the 
persons or items sought.

                    Article 14--Service of Documents

    Paragraph 1 requires the Requested State to use its ``best 
efforts'' to effect service of any document related to any 
request for assistance made under the Treaty. ``Best efforts'' 
varies depending on the information provided in the request, in 
accordance with Article 4. It is expected that when the United 
States is the Requested State, service under the Treaty will be 
made by registered mail (in the absence of any request by 
Estonia to follow a specified procedure for service) or by the 
United States Marshal's Service in instances in which personal 
service is requested.
    Paragraph 2 provides that when the documents to be served 
call for the appearance of a person in the Requesting State, 
the documents should be received by the Central Authority of 
the Requested State a reasonable time before the date set for 
any such appearance.
    Paragraph 3 requires that proof of service be returned to 
the Requesting State in the manner specified in the request.

                     Article 15--Search and Seizure

    Where appropriate, the Requested State may search for, 
secure, and deliver items needed as evidence, or for other 
purposes, for the Requesting State. Article 5(1) authorizes 
United States courts to issue search warrants to obtain 
evidence requested by Estonia.
    Article 15 requires that the search and seizure request 
include ``information justifying such action under the laws of 
the Requested State.'' This means that normally a request to 
the United States from Estonia will have to be supported by a 
showing of probable cause for the search. A United States 
request to Estonia would have to satisfy the corresponding 
evidentiary standard in Estonia.
    Paragraph 2 is designed to ensure that a record is kept of 
articles seized and of articles delivered up under the Treaty. 
This provision effectively requires that, upon request, every 
official who has custody of a seized item shall certify, 
through the use of Form E appended to this Treaty, the identity 
of the item, the continuity of custody, and any changes in its 
condition.
    The article also provides that the certificates describing 
continuity of custody will be admissible in evidence in the 
Requesting State as proof of the truth of the matters set forth 
therein.
    Paragraph 3 permits the Requested State, as a matter of 
discretion, to protect the rights of third parties in the item 
seized. The negotiators intended that the Requested State, in 
using its discretion to impose conditions, would do so only to 
the extent ``deemed to be necessary.'' This paragraph is not 
intended to serve as an impediment to the transfer of items 
seized. This article is similar to provisions in many other 
United States mutual legal assistance treaties. \21\
---------------------------------------------------------------------------
    \21\ See, e.g., U.S.-Argentina Mutual Legal Assistance Treaty, Dec. 
4, 1990, art. 15(3); U.S.-Bahamas Mutual Legal Assistance Treaty, supra 
note 13, art. 15(3); U.S.-Canada Mutual Legal Assistance Treaty, supra 
note 12, art. 15(4); U.S.-U.K. Mutual Legal Assistance Treaty 
Concerning the Cayman Islands, Jul. 3, 1986, art. 15(3); U.S.-Hungary 
Mutual Legal Assistance Treaty, Dec. 1, 1994, art. 15(3); U.S.- Korea 
Mutual Legal Assistance Treaty, Nov. 23, 1993, art. 15(3); U.S.-Panama 
Mutual Legal Assistance Treaty, Apr. 11, 1991, art. 15(3); U.S.-
Philippines Mutual Legal Assistance Treaty, supra note 11, art. 15(3); 
U.S.-Spain Mutual Legal Assistance Treaty, Nov. 20, 1990, art. 15(3); 
U.S.-U.K. Mutual Legal Assistance Treaty, Jan. 6, 1994, art. 15(4).
---------------------------------------------------------------------------

                      Article 16--Return of Items

    This article requires that upon request by the Central 
Authority of the Requested State, the Central Authority of the 
Requesting State return as soon as possible any item, including 
a document or record, provided by the Requested State pursuant 
to the Treaty. Both Parties anticipate that, unless original 
records or items of significant intrinsic value are involved, 
the Requested State will not usually request return of the 
item; however, both Parties recognize that this is a matter 
best left to development in practice.

            Article 17--Assistance in Forfeiture Proceedings

    A major goal of the Treaty is to enhance the efforts of 
both the United States and Estonia in combating narcotics 
trafficking. One significant strategy in this effort is action 
by United States authorities to seize and confiscate money, 
property, and other proceeds of drug trafficking.
    This article is similar to a number of United States mutual 
legal assistance treaties, including Article 17 in the U.S.-
Canada Mutual Legal Assistance Treaty and Article 15 of the 
U.S.-Thailand Mutual Legal Assistance Treaty. Paragraph 1 
authorizes the Central Authority of one State to notify the 
other of the existence in the latter's territory of proceeds or 
instrumentalities of offenses that may be forfeitable or 
otherwise subject to seizure. The term ``proceeds or 
instrumentalities'' was intended to include things such as 
money, vessels, or other valuables either used in the crime or 
purchased or obtained as a result of the crime.
    Upon receipt of notice under this article, the Central 
Authority of the State in which the proceeds or 
instrumentalities are located may take whatever action is 
appropriate under its law. For instance, if the assets in 
question are located in the United States and were obtained as 
a result of a fraud in Estonia, they could be seized under 18 
U.S.C. 981 in aid of a prosecution under Title 18, United 
States Code, Section 2314, \22\ or be subject to a temporary 
restraining order in anticipation of a civil action for the 
return of the assets to the lawful owner. Proceeds of a foreign 
kidnapping, robbery, extortion or a fraud by or against a 
foreign bank are civilly and criminally forfeitable in the 
United States since these offenses are predicate offenses under 
U.S. money laundering laws. \23\ Thus, it is a violation of 
U.S. criminal law to launder the proceeds of these foreign 
fraud or theft offenses when such proceeds are brought into the 
United States.
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    \22\ This statute makes it an offense to transport money or 
valuables in interstate or foreign commerce knowing that they were 
obtained by fraud in the United States or abroad.
    \23\ Title 18, United States Code, Section 1956(c)(7)(B).
---------------------------------------------------------------------------
    If the assets are the proceeds of drug trafficking, it is 
especially likely that the Parties will be able and willing to 
help one another. Title 18, United States Code, Section 
981(a)(1)(B) allows for the forfeiture to the United States of 
property:
    which represents the proceeds of an offense against a 
foreign nation involving the manufacture, importation, sale, or 
distribution of a controlled substance (as such term is defined 
for the purposes of the Controlled Substance Act) within whose 
jurisdiction such offense or activity would be punishable by 
death or imprisonment for a term exceeding one year if such act 
or activity had occurred within the jurisdiction of the United 
States.
    This is consistent with the laws in other countries, such 
as Switzerland and Canada; there is a growing trend among 
nations toward enacting legislation of this kind in the battle 
against narcotics trafficking. \24\ The U.S. delegation expects 
that Article 16 of the Treaty will enable this legislation to 
be even more effective.
---------------------------------------------------------------------------
    \24\ Article 5 of the United Nations Convention Against Illicit 
Traffic in Narcotic Drugs and Psychotropic Substances calls for the 
States that are parties to enact legislation to forfeit illicit drug 
proceeds and to assist one another in such matters. United Nations 
Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic 
Substances, with annex and final act, done at Vienna, Dec. 20, 1988.
---------------------------------------------------------------------------
    Paragraph 2 states that the Parties shall assist one 
another to the extent permitted by their laws in proceedings 
relating to the forfeiture of the proceeds or instrumentalities 
of offenses, to restitution to crime victims, or to the 
collection of fines imposed as sentences in criminal 
convictions. It specifically recognizes that the authorities in 
the Requested State may take immediate action to temporarily 
immobilize the assets pending further proceedings. Thus, if the 
law of the Requested State enables it to seize assets in aid of 
a proceeding in the Requesting State or to enforce a judgment 
of forfeiture levied in the Requesting State, the Treaty 
provides that the Requested State shall do so. The language of 
the article is carefully selected, however, so as not to 
require either State to take any action that would exceed its 
internal legal authority. It does not mandate institution of 
forfeiture proceedings or initiation of temporary 
immobilization in either country against property identified by 
the other if the relevant prosecution authorities do not deem 
it proper to do so.
    Paragraph 3 will enable a Party having custody over 
proceeds or instrumentalities of offenses to transfer forfeited 
assets, or the proceeds of the sale of such assets, to the 
other Party, at the former's discretion and to the extent 
permitted by their respective laws.
    United States law permits the government to transfer a 
share of certain forfeited property to other countries that 
participate directly or indirectly in the seizure or forfeiture 
of the property. Under regulations promulgated by the Attorney 
General, the amount transferred generally reflects the 
contribution of the foreign government in law enforcement 
activity which led to the seizure and forfeiture of the 
property. The law requires that the transfer be authorized by 
an international agreement between the United States and the 
foreign country, and be approved by the Secretary of State. 
\25\
---------------------------------------------------------------------------
    \25\ See Title 18, United States Code, Section 981 (i)(1).
---------------------------------------------------------------------------
    Estonian law neither authorizes nor prohibits sharing and, 
thus, the Estonian delegation stated that Estonia could share a 
percentage of forfeited proceeds with the United States on a 
case-by-case basis.

             Article 18--Compatibility with Other Treaties

    This article clarifies that assistance and procedures 
provided by this Treaty shall not prevent either Party from 
providing assistance under any other applicable international 
agreements. Article 18 also leaves intact the recourse to any 
assistance available under the internal laws of either State. 
Thus, the provisions of United States and Estonia law on 
letters rogatory remain undisturbed, and the Treaty does not 
alter any pre-existing agreements concerning investigative 
assistance.

                        Article 19--Consultation

    Experience has shown that as the parties to a treaty of 
this kind work together over the years, they become aware of 
various practical ways to make the treaty more effective and 
their own efforts more efficient. This article anticipates that 
the Parties will share those ideas with one another, and 
encourages them to agree on the implementation of such 
measures. Practical measures of this kind might include methods 
of keeping each other informed of the progress of 
investigations and cases in which treaty assistance was 
utilized, or the use of the Treaty to obtain evidence that 
otherwise might be sought via methods less acceptable to the 
Requested State. Very similar provisions are contained in 
recent United States mutual legal assistance treaties. \26\ It 
is anticipated that the Central Authorities will conduct 
regular consultations pursuant to this article.
---------------------------------------------------------------------------
    \26\ See, e.g., U.S.-Philippines Mutual Legal Assistance Treaty, 
supra note 11, art. 18; U.S.-Canada Mutual Legal Assistance Treaty, 
supra note 12, art. XVIII; U.S.-U.K. Mutual Legal Assistance Treaty 
Concerning the Cayman Islands, supra note 21, art. 18; U.S.-Argentina 
Mutual Legal Assistance Treaty, supra note 21, art. 18.
---------------------------------------------------------------------------

      Article 20--Ratification, Entry Into Force, and Termination

    This article concerns the procedures for the ratification, 
exchange of instruments of ratification, and entry into force 
of the Treaty.
    Paragraph 1 contains the standard treaty language setting 
forth the procedures for the ratification and exchange of the 
instruments of ratification.
    Paragraph 2 provides that this Treaty shall enter into 
force upon the exchange of instruments of ratification.
    Paragraph 3 provides that the Treaty will be terminated six 
months from the date that a Party receives written notification 
from the other. Similar termination provisions are contained in 
other United States mutual legal assistance treaties.

 Technical Analysis of The Treaty Between The United States of America 
       and Grenada on Mutual Legal Assistance in Criminal Matters

    On May 30, 1996, the United States signed a treaty with 
Grenada on Mutual Legal Assistance in Criminal Matters (``the 
Treaty''). In recent years, the United States has signed 
similar treaties with a number of countries as part of a highly 
successful effort to modernize the legal tools available to law 
enforcement authorities in need of foreign evidence for use in 
criminal cases.
    The Treaty is expected to be a valuable weapon for the 
United States in its efforts to combat organized crime, 
transnational terrorism, and international drug trafficking in 
the eastern Caribbean, where Grenada is a regional leader.
    It is anticipated that the Treaty will be implemented in 
the United States pursuant to the procedural framework provided 
by Title 28, United States Code, Section 1782. Grenada plans to 
enact implementing legislation for the Treaty, as it currently 
has no specific mutual legal assistance law in force.
    The following technical analysis of the Treaty was prepared 
by the Office of International Affairs, United States 
Department of Justice, and the Office of the Legal Adviser, 
United States Department of State, based upon the negotiating 
notes. The technical analysis includes a discussion of U.S. law 
and relevant practice as of the date of its preparation, which 
are, of course, subject to change. Foreign law discussions 
reflect the current state of that law, to the best of the 
drafters' knowledge.

                     Article 1--Scope of Assistance

    Paragraph 1 requires the Parties to provide mutual 
assistance in connection with the investigation, prosecution, 
and prevention of offenses, and in proceedings relating to 
criminal matters.
    The negotiators specifically agreed that the term 
``investigations'' includes grand jury proceedings in the 
United States and similar pre-charge proceedings in Grenada, 
and other legal measures taken prior to the filing of formal 
charges in either State. \1\ The term ``proceedings'' was 
intended to cover the full range of proceedings in a criminal 
case, including such matters as bail and sentencing hearings. 
\2\ It was also agreed that since the phrase ``proceedings 
related to criminal matters'' is broader than the 
investigation, prosecution or sentencing process itself, 
proceedings covered by the Treaty need not be strictly criminal 
in nature. For example, proceedings to forfeit to the 
government the proceeds of illegal drug trafficking may be 
civil in nature; \3\ yet such proceedings are covered by the 
Treaty.
---------------------------------------------------------------------------
    \1\ The requirement assistance be provided under the Treaty at the 
pre-indictment stage is critical to the U.S., as our investigators and 
prosecutors often need to obtain evidence from foreign countries in 
order to determine whether or not to file criminal charges. This 
obligation is a reciprocal one; the U.S. must assist Grenada under the 
Treaty in connection with investigations prior to charges being filed 
in Grenada. Prior to the 1996 amendments to Title 28, United States 
Code, Section 1782, some U.S. courts had interpreted that provision to 
require that assistance be provided in criminal matters only if formal 
charges have already been filed abroad, or are ``imminent,'' or ``very 
likely.'' McCarthy, ``A Proposed Uniform Standard for U.S. Courts in 
Granting Requests for International Judicial Assistance,'' 15 Fordham 
Int'l Law J. 772 (1991). The 1996 amendment eliminates this problem, 
however, by amending subsec. (a) to state ``including criminal 
investigation conducted before formal accusation.'' In any event, the 
Treaty was intentionally written to cover criminal investigations that 
have just begun as well as those that are nearly completed; it draws no 
distinction between cases in which charges are already pending, 
``imminent,'' ``very likely,'' or ``very likely very soon.'' Thus, U.S. 
courts should execute requests under the Treaty without examining such 
factors.
    \2\ One United States court has interpreted Title 28, United States 
Code, Section 1782 as permitting the execution of a request for 
assistance from a foreign country only if the evidence sought is for 
use in proceedings before an adjudicatory ``tribunal'' in the foreign 
country. In Re Letters Rogatory Issued by the Director of Inspection of 
the Gov't of India, 385 F.2d 1017 (2d Cir. 1967); Fonseca v. 
Blumenthal, 620 F.2d 322 (2d Cir. 1980). This rule poses an unnecessary 
obstacle to the execution of requests concerning matters which are at 
the investigatory stage, or which are customarily handled by 
administrative officials in the Requesting State. Since this paragraph 
of the Treaty specifically permits requests to be made in connection 
with matters not within the jurisdiction of an adjudicatory 
``tribunal'' in the Requesting State, this paragraph accords the courts 
broader authority to execute requests than does Title 28, United States 
Code, Section 1782, as interpreted in the India and Fonseca cases.
    \3\ Title 21, United States Code, Section 881; Title 18, United 
States Code, Section 1964.
---------------------------------------------------------------------------
    Paragraph 2 lists the major types of assistance 
specifically considered by the Treaty negotiators. Most of the 
items listed in the paragraph are described in detail in 
subsequent articles. The list is not intended to be exhaustive, 
a fact that is signaled by the word ``include'' in the opening 
clause of the paragraph and reinforced by the final 
subparagraph.
    Many law enforcement treaties, especially in the area of 
extradition, condition cooperation upon a showing of ``dual 
criminality'', i.e., proof that the facts underlying the 
offense charged in the Requesting State would also constitute 
an offense had they occurred in the Requested State. Paragraph 
3 of this Article 1, however, makes it clear that there is no 
general requirement of dual criminality under this Treaty. 
Thus, assistance may be provided even when the criminal matter 
under investigation in the Requesting State would not be a 
crime in the Requested State ``...except as otherwise provided 
by this Treaty,'' a phrase which refers to Article 3(1)(e), 
under which the Requested State may, in its discretion, require 
dual criminality for a request under Article 14 (involving 
searches and seizures) or Article 16 (involving asset 
forfeiture matters). Article 1(3) is important because United 
States and Grenada criminal law differ, and a general dual 
criminality rule would make assistance unavailable in many 
significant areas. This type of limited dual criminality 
provision is found in other U.S. mutual legal assistance 
treaties. \4\ During the negotiations, the United States 
delegation received assurances that assistance would be 
available under the Treaty to the United States in 
investigations of such offenses as conspiracy; drug 
trafficking, including continuing criminal enterprise (Title 
21, United States Code, Section 848); offenses under the 
racketeering statutes (Title 18, United States Code, Section 
1961-1968); money laundering; tax crimes, including tax evasion 
and tax fraud; crimes against environmental protection laws; 
and antitrust violations.
---------------------------------------------------------------------------
    \4\ See e.g., U.S.-Argentina Treaty on Mutual Legal Assistance in 
Criminal Matters, Dec. 4, 1990, art. 1(3); U.S.-Philippines Treaty on 
Mutual Legal Assistance in Criminal Matters, Nov. 13, 1994, art. 1(3).
---------------------------------------------------------------------------
    Paragraph 4 contains a standard provision in United States 
mutual legal assistance treaties \5\ which states that the 
Treaty is intended solely for government-to-government mutual 
legal assistance. The Treaty is not intended to provide to 
private persons a means of evidence-gathering, or to extend 
generally to civil matters. Private litigants in the United 
States may continue to obtain evidence from Grenada by letters 
rogatory, an avenue of international assistance that the Treaty 
leaves undisturbed. Similarly, the paragraph provides that the 
Treaty is not intended to create any right in a private person 
to suppress or exclude evidence provided pursuant to the 
Treaty, or impede the execution of a request.
---------------------------------------------------------------------------
    \5\ United States v. Johnpoll, 739 F.2d 702 (2d Cir. 1984), cert. 
denied, 469 U.S. 1075 (1984).
---------------------------------------------------------------------------

                     Article 2--Central Authorities

    This article requires that each Party establish a ``Central 
Authority'' for transmission, receipt, and handling of Treaty 
requests. The Central Authority of the United States would make 
all requests to Grenada on behalf of federal agencies, state 
agencies, and local law enforcement authorities in the United 
States. The Grenadan Central Authority will make all requests 
emanating from officials in Grenada.
    The Central Authority for the Requesting State will 
exercise discretion as to the form and content of requests, and 
the number and priority of requests. The Central Authority of 
the Requested State is also responsible for receiving each 
request, transmitting it to the appropriate federal or state 
agency, court, or other authority for execution, and ensuring 
that a timely response is made.
    Paragraph 2 provides that the Attorney General or a person 
designated by the Attorney General will be the Central 
Authority for the United States. The Attorney General has 
delegated the authority to handle the duties of Central 
Authority under mutual assistance treaties to the Assistant 
Attorney General in charge of the Criminal Division. \6\ 
Paragraph 2 also states that the Attorney General of Grenada or 
a person designated by the Attorney General will serve as the 
Central Authority for Grenada.
---------------------------------------------------------------------------
    \6\ 28 C.F.R. Sec.  0.64-1. The Assistant Attorney General for the 
Criminal Division has in turn delegated this authority to the Deputy 
Assistant Attorneys General and the Director of the Criminal Division's 
Office of International Affairs, in accordance with the regulation. 
Directive No. 81, 45 Fed. Reg. 79,758 (1980), as corrected at 48 Fed. 
Reg. 54,595 (1983). That delegation was subsequently extended to the 
Deputy Directors of the Office of International Affairs. 59 Fed. Reg. 
42,160 (1994).
---------------------------------------------------------------------------
    Paragraph 3 states that the Central Authorities shall 
communicate directly with one another for the purposes of the 
Treaty. It is anticipated that such communication will be 
accomplished by telephone, telefax, or INTERPOL channels, or 
any other means, at the option of the Central Authorities 
themselves.

                  Article 3--Limitations on Assistance

    This article specifies the limited classes of cases in 
which assistance may be denied under the Treaty.
    Paragraph (1)(a) permits the Requested State to deny a 
request if it relates to an offense under military law that 
would not be an offense under ordinary criminal law. Similar 
provisions appear in many other U.S. mutual legal assistance 
treaties.
    Paragraph (1)(b) permits the Central Authority of the 
Requested State to deny a request if execution of the request 
would prejudice the security or other essential public 
interests of that State. All United States mutual legal 
assistance treaties contain provisions allowing the Requested 
State to decline to execute a request if execution would 
prejudice its essential interests.
    The delegations agreed that ``security'' would include 
cases in which assistance might involve disclosure of 
information which is classified for national security reasons. 
It is anticipated that the United States Department of Justice, 
in its role as Central Authority for the United States, would 
work closely with the Department of State and other government 
agencies to determine whether to execute requests that might 
fall in this category.
    The delegations also agreed that the phrase ``essential 
public interests'' was intended to narrowly limit the class of 
cases in which assistance may be denied. It would not be enough 
that the Requesting State's case is one that would be 
inconsistent with public policy had it been brought in the 
Requested State. Rather, the Requested State must be convinced 
that execution of the request would seriously conflict with 
significant public policy. An example might be a request 
involving prosecution by the Requesting State of conduct which 
occurred in the Requested State and is constitutionally 
protected in that State.
    However, it was agreed that ``essential public interests'' 
could include interests unrelated to national military or 
political security, and be invoked if the execution of a 
request would violate essential United States interests related 
to the fundamental purposes of the Treaty. For example, one 
fundamental purpose of the Treaty is to enhance law enforcement 
cooperation, and attaining that purpose would be hampered if 
sensitive law enforcement information available under the 
Treaty were to fall into the wrong hands. Therefore, the United 
States Central Authority may invoke paragraph (1)(b) to decline 
to provide sensitive or confidential drug-related information 
pursuant to a request under this Treaty whenever it determines, 
after appropriate consultation with law enforcement, 
intelligence, and foreign policy agencies, that a senior 
foreign government official who will have access to the 
information is engaged in or facilitates the production or 
distribution of illegal drugs and is using the request to the 
prejudice of a U.S. investigation or prosecution. \7\
---------------------------------------------------------------------------
    \7\ This is consistent with the Senate resolution of advice and 
consent to ratification, e.g., of the mutual legal assistance treaties 
with Mexico, Canada, Belgium, Thailand, the Bahamas, and the United 
Kingdom Concerning the Cayman Islands. Cong. Rec. 13884, (1989) (treaty 
citations omitted). See also Staff of Senate Comm. on Foreign 
Relations, 100th Cong., 2nd Sess., Mutual Legal Assistance Treaty 
Concerning the Cayman Islands 67 (1988) (testimony of Mark M. Richard, 
Deputy Assistant Attorney General, Criminal Division, United States 
Department of Justice).
---------------------------------------------------------------------------
    In general, the mere fact that the execution of a request 
would involve the disclosure of records protected by bank or 
business secrecy in the Requested State would not justify 
invocation of the ``essential public interests'' provision. 
Indeed, a major objective of the Treaty is to provide a formal, 
agreed channel for making such information available for law 
enforcement purposes. In the course of the negotiations, the 
Grenada delegation expressed its view that in very exceptional 
and narrow circumstances the disclosure of business or banking 
secrets could be of such significant importance to its 
Government (e.g., if disclosure would effectively destroy an 
entire domestic industry rather than just a specific business 
entity) that it could prejudice that State's ``essential public 
interests'' and entitle it to deny assistance. \8\ The U.S. 
delegation did not disagree that there might be such 
extraordinary circumstances, but emphasized its view that 
denials of assistance on this basis by either party should be 
extremely rare.
---------------------------------------------------------------------------
    \8\ Grenada's view of this provision is thus similar to the Swiss 
view of Article 3(2) of the U.S.-Switzerland Treaty. See Technical 
Analysis to the Treaty between the U.S. and Switzerland on Mutual 
Assistance in Criminal Matters, signed May 25, 1973. U.S. Senate Exec. 
F, 94th Cong. 2d Sess. p. 39 (1976).
---------------------------------------------------------------------------
    Paragraph (1)(c) permits the denial of a request if it was 
not made in conformity with the Treaty.
    Paragraph (1)(d) permits denial of a request if it involves 
a political offense. It is anticipated that the Central 
Authorities will employ jurisprudence similar to that used in 
the extradition treaties for determining what is a ``political 
offense.'' These restrictions are similar to those found in 
other mutual legal assistance treaties.
    Paragraph (1)(e) permits denial of a request if there is no 
``dual criminality'' with respect to requests made pursuant to 
Article 14 (involving searches and seizures) or Article 16 
(involving asset forfeiture matters).
    Finally, Paragraph (1)(f) permits denial of the request if 
execution would be contrary to the Constitution of the 
Requested State. This provision is similar to clauses in other 
United States mutual legal assistance treaties. \9\
---------------------------------------------------------------------------
    \9\ U.S.-Jamaica Mutual Legal Assistance Treaty, July 7, 1989, art. 
2(1)(e); U.S.-Nigeria Mutual Legal Assistance Treaty, Sept. 13, 1989, 
art. III(1)(d).
---------------------------------------------------------------------------
    Paragraph 2 is similar to Article 3(2) of the U.S.-
Switzerland Mutual Legal Assistance Treaty \10\, and obliges 
the Requested State to consider imposing appropriate conditions 
on its assistance in lieu of denying a request outright 
pursuant to the first paragraph of the article. For example, a 
Contracting Party might request information that could be used 
either in a routine criminal case (which would be within the 
scope of the Treaty) or in a politically motivated prosecution 
(which would be subject to refusal). This paragraph would 
permit the Requested State to provide the information on the 
condition that it be used only in the routine criminal case. 
Naturally, the Requested State would notify the Requesting 
State of any proposed conditions before actually delivering the 
evidence in question, thereby according the Requesting State an 
opportunity to indicate whether it is willing to accept the 
evidence subject to the conditions. If the Requesting State 
does accept the evidence subject to the conditions, it must 
honor the conditions.
---------------------------------------------------------------------------
    \10\ U.S.-Switzerland Mutual Legal Assistance Treaty, May 25, 1973, 
art. 26, 27 U.S.T. 2019, T.I.A.S. No. 8302, 1052 U.N.T.S. 61.
---------------------------------------------------------------------------
    Paragraph 3 effectively requires that the Central Authority 
of the Requested State promptly notify the Central Authority of 
the Requesting State of the basis for any denial of assistance. 
This ensures that, when a request is only partly executed, the 
Requested State will provide some explanation for not providing 
all of the information or evidence sought. This should avoid 
misunderstandings, and enable the Requesting State to better 
prepare its requests in the future.

                Article 4--Form and Contents of Requests

    Paragraph 1 requires that requests be in writing, except 
that the Central Authority of the Requested State may accept a 
request in another form in ``emergency situations.'' A request 
in another form must be confirmed in writing within ten days 
unless the Central Authority of the Requested State agrees 
otherwise.
    Paragraph 2 lists the four kinds of information deemed 
crucial to the efficient operation of the Treaty which must be 
included in each request. Paragraph 3 outlines kinds of 
information that are important but not always crucial, and 
should be provided ``to the extent necessary and possible.'' In 
keeping with the intention of the Parties that requests be as 
simple and straightforward as possible, there is no requirement 
under the Treaty that a request be legalized or certified in 
any particular manner.

                    Article 5--Execution of Requests

    Paragraph 1 requires each Central Authority promptly to 
execute requests. The negotiators intended that the Central 
Authority, upon receiving a request, will first review the 
request, then promptly notify the Central Authority of the 
Requesting State if the request does not appear to comply with 
the Treaty's terms. If the request does satisfy the Treaty's 
requirements and the assistance sought can be provided by the 
Central Authority itself, the request will be fulfilled 
immediately. If the request meets the Treaty's requirements but 
its execution requires action by some other entity in the 
Requested State, the Central Authority will promptly transmit 
the request to the correct entity for execution.
    Where the United States is the Requested State, it is 
anticipated that the Central Authority will transmit most 
requests to federal investigators, prosecutors, or judicial 
officials for execution if the Central Authority deems it 
appropriate to do so.
    Paragraph 1 further authorizes and requires the federal, 
state, or local agency or authority selected by the Central 
Authority to do everything within its power and take whatever 
action would be necessary to execute the request. This 
provision is not intended or understood to authorize the use of 
the grand jury in the United States for the collection of 
evidence pursuant to a request from Grenada. Rather, it is 
anticipated that when a request from Grenada requires 
compulsory process for execution, the United States Department 
of Justice would ask a federal court to issue the necessary 
process under Title 28, United States Code, Section 1782, and 
the provisions of the Treaty. \11\
---------------------------------------------------------------------------
    \11\ This paragraph of the Treaty specifically authorizes United 
States courts to use all of their powers to issue subpoenas and other 
process to satisfy a request under the Treaty.
---------------------------------------------------------------------------
    The third sentence in Article 5(1) reads ``[t]he competent 
judicial or other authorities of the Requested State shall have 
power to issue subpoenas, search warrants, or other orders 
necessary to execute the request.'' This language reflects an 
understanding that the Parties intend to provide each other 
with every available form of assistance from judicial and 
executive branches of government in the execution of mutual 
assistance requests. The phrase refers to ``judicial or other 
authorities'' to include all those officials authorized to 
issue compulsory process that might be needed in executing a 
request. For example, in Grenada, justices of the peace and 
senior police officers are empowered to issue certain kinds of 
compulsory process under certain circumstances.
    Paragraph 2 states that the Central Authority of the 
Requested State shall make all necessary arrangements for and 
meet the costs of representing the Requesting State in any 
proceedings in the Requested State arising out of the request 
for assistance. Thus, it is understood that if execution of the 
request entails action by a judicial or administrative agency, 
the Central Authority of the Requested State shall arrange for 
the presentation of the request to that court or agency at no 
cost to the Requesting State. Since the cost of retaining 
counsel abroad to present and process letters rogatory is 
sometimes quite high, this provision for reciprocal legal 
representation in Article 5(2) is a significant advance in 
international legal cooperation. It is also understood that 
should the Requesting State choose to hire private counsel for 
a particular request, it is free to do so at its own expense.
    Paragraph 3 is inspired by Article 5(5) of the U.S.-
Jamaican Mutual Legal Assistance Treaty \12\, and provides, 
``[r]equests shall be executed according to the internal laws 
and procedures of the Requested State, except to the extent 
that this Treaty provides otherwise.'' Thus, the method of 
executing a request for assistance under the Treaty must be in 
accordance with the Requested State's internal laws absent 
specific contrary procedures in the Treaty itself. Thus, 
neither State is expected to take any action pursuant to a 
Treaty request which would be prohibited under its internal 
laws. For the United States, the Treaty is intended to be self-
executing; no new or additional legislation will be needed to 
carry out the obligations undertaken.
---------------------------------------------------------------------------
    \12\ U.S.-Jamaica Mutual Legal Assistance Treaty, supra note 9.
---------------------------------------------------------------------------
    The same paragraph requires that procedures specified in 
the request shall be followed in the execution of the request 
except to the extent that those procedures cannot lawfully be 
followed in the Requested State. This provision is necessary 
for two reasons.
    First, there are significant differences between the 
procedures which must be followed by United States and Grenada 
authorities in collecting evidence in order to assure the 
admissibility of that evidence at trial. For instance, United 
States law permits documentary evidence taken abroad to be 
admitted in evidence if the evidence is duly certified and the 
defendant has been given fair opportunity to test its 
authenticity. \13\ Grenada law currently contains no similar 
provision. Thus, documents assembled in Grenada in strict 
conformity with Grenadan procedures on evidence might not be 
admissible in United States courts. Similarly, United States 
courts utilize procedural techniques such as videotape 
depositions to enhance the reliability of evidence taken 
abroad, and some of these techniques, while not forbidden, are 
not used in Grenada.
---------------------------------------------------------------------------
    \13\ Title 18, United States Code, Section 3505.
---------------------------------------------------------------------------
    Second, the evidence in question could be needed for 
subjection to forensic examination, and sometimes the 
procedures which must be followed to enhance the scientific 
accuracy of such tests do not coincide with those utilized in 
assembling evidence for admission into evidence at trial. The 
value of such forensic examinations could be significantly 
lessened--and the Requesting State's investigation could be 
retarded--if the Requested State were to insist unnecessarily 
on handling the evidence in a manner usually reserved for 
evidence to be presented to its own courts.
    Both delegations agreed that the Treaty's primary goal of 
enhancing law enforcement in the Requesting State could be 
frustrated if the Requested State were to insist on producing 
evidence in a manner which renders the evidence inadmissible or 
less persuasive in the Requesting State. For this reason, 
Article 5(3) requires the Requested State to follow the 
procedure outlined in the request to the extent that it can, 
even if the procedure is not that usually employed in its own 
proceedings. However, if the procedure called for in the 
request is unlawful in the Requested State (as opposed to 
simply unfamiliar there), the appropriate procedure under the 
law applicable for investigations or proceedings in the 
Requested State will be utilized.
    Paragraph 4 states that a request for assistance need not 
be executed immediately when the Central Authority of the 
Requested State determines that execution would interfere with 
an ongoing investigation or legal proceeding in the Requested 
State. The Central Authority of the Requested Party may, in its 
discretion, take such preliminary action as deemed advisable to 
obtain or preserve evidence that might otherwise be lost before 
the conclusion of the investigation or legal proceedings in 
that State. The paragraph also allows the Requested State to 
provide the information sought to the Requesting State subject 
to conditions needed to avoid interference with the Requested 
State's proceedings.
    It is anticipated that some United States requests for 
assistance may contain information that under our law must be 
kept confidential. For example, it may be necessary to set out 
information that is ordinarily protected by Rule 6(e), Federal 
Rules of Criminal Procedure, in the course of an explanation of 
``the subject matter and nature of the investigation, 
prosecution, or proceeding'' as required by Article 4(2)(b). 
Therefore, Article 5(5) enables the Requesting State to call 
upon the Requested State to keep the information in the request 
confidential. \14\ If the Requested State cannot execute the 
request without disclosing the information in question (as 
might be the case if execution requires a public judicial 
proceeding in the Requested State), or if for some other reason 
this confidentiality cannot be assured, the Treaty obliges the 
Requested Party to so indicate, thereby giving the Requesting 
Party an opportunity to withdraw the request rather than risk 
jeopardizing an investigation or proceeding by public 
disclosure of the information.
---------------------------------------------------------------------------
    \14\ This provision is similar to language in other United States 
mutual legal assistance treaties. See e.g., U.S.-Mexico Mutual Legal 
Assistance Treaty, Dec. 9, 1987, art. 4(5); U.S.-Canada Mutual Legal 
Assistance Treaty, Mar. 18, 1985; art. 6(5), U.S.-Italy Mutual Legal 
Assistance Treaty, Nov. 9, 1982, art. 8(2); US.-Philippines Mutual 
Legal Assistance Treaty, supra note 4, art. 5(5).
---------------------------------------------------------------------------
    Paragraph 6 states that the Central Authority of the 
Requested State shall respond to reasonable inquiries by the 
Requesting State concerning progress of its request. This is to 
encourage open communication between the Central Authorities in 
monitoring the status of specific requests.
    Paragraph 7 requires that the Central Authority of the 
Requested State promptly notify the Central Authority of the 
Requesting State of the outcome of the execution of a request. 
If the assistance sought is not provided, the Central Authority 
of the Requested State must also explain the basis for the 
outcome to the Central Authority of the Requesting State. For 
example, if the evidence sought could not be located, the 
Central Authority of the Requested State would report that fact 
to the Central Authority of the Requesting State.

                            Article 6--Costs

    This article reflects the increasingly accepted 
international rule that each State shall bear the expenses 
incurred within its territory in executing a legal assistance 
treaty request. This is consistent with similar provisions in 
other United States mutual legal assistance treaties. \15\ 
Article 6, however, states that the Requesting State will pay 
fees of expert witnesses, translation, interpretation and 
transcription costs, and allowances and expenses related to 
travel of persons pursuant to Articles 10 and 11.
---------------------------------------------------------------------------
    \15\ See e.g., U.S.-Canada Mutual Legal Assistance Treaty, supra 
note 14, art. 8; U.S.-Philippines Mutual Legal Assistance Treaty, supra 
note 4, art. 6.
---------------------------------------------------------------------------

                     Article 7--Limitations on Use

    Paragraph 1 states that the Central Authority of the 
Requested State may require that information provided under the 
Treaty not be used for any purpose other than that stated in 
the request without the prior consent of the Requested State. 
If such confidentiality is requested, the Requesting State must 
comply with the conditions. It will be recalled that Article 
4(2)(d) states that the Requesting State must specify the 
purpose for which the information or evidence sought under the 
Treaty is needed.
    It is not anticipated that the Central Authority of the 
Requested State will routinely request use limitations under 
Article 7(1). Rather, it is expected that such limitations will 
be requested sparingly, only when there is good reason to 
restrict the utilization of the evidence.
    Paragraph 2 states that the Requested State may request 
that the information or evidence it provides to the Requesting 
State be kept confidential. Under most United States mutual 
legal assistance treaties, conditions of confidentiality are 
imposed only when necessary, and are tailored to fit the 
circumstances of each particular case. For instance, the 
Requested State may wish to cooperate with the investigation in 
the Requesting State but choose to limit access to information 
which might endanger the safety of an informant, or unduly 
prejudice the interests of persons not connected in any way 
with the matter being investigated in the Requesting State. 
Article 7(2) requires that if conditions of confidentiality are 
imposed, the Requesting State need only make ``best efforts'' 
to comply with them. This ``best efforts'' language was used 
because the purpose of the Treaty is the production of evidence 
for use at trial, and that purpose would be frustrated if the 
Requested State could routinely permit the Requesting State to 
see valuable evidence, but impose confidentiality restrictions 
which prevent the Requesting State from using it.
    The Grenada delegation expressed concern that information 
it might supply in response to a request by the United States 
under the Treaty not be disclosed under the Freedom of 
Information Act. Both delegations agreed that since this 
article permits the Requested State to prohibit the Requesting 
State's disclosure of information for any purpose other than 
that stated in the request, a Freedom of Information Act 
request that seeks information that the United States obtained 
under the Treaty would have to be denied if the United States 
received the information on the condition that it be kept 
confidential.
    If the United States Government were to receive evidence 
under the Treaty that seems to be exculpatory to the defendant 
in another case, the United States might be obliged to share 
the evidence with the defendant in the second case. Brady v. 
Maryland, 373 U.S. 83 (1963). Therefore, Paragraph 3 states 
that nothing in Article 7 shall preclude the use or disclosure 
of information to the extent that there is an obligation to do 
so under the Constitution of the Requesting State in a criminal 
prosecution. Any such proposed disclosure and the provision of 
the Constitution under which such disclosure is required shall 
be notified by the Requesting State to the Requested State in 
advance.
    Paragraph 4 states that once evidence obtained under the 
Treaty has been revealed to the public in accordance with 
paragraphs 1 or 2, the Requesting State is free to use the 
evidence for any purpose. Once evidence obtained under the 
Treaty has been revealed to the public in a trial, that 
information effectively becomes part of the public domain, and 
is likely to become a matter of common knowledge, perhaps even 
be described in the press. The negotiators noted that once this 
has occurred, it is practically impossible for the Central 
Authority of the Requesting State to block the use of that 
information by third parties.
    It should be kept in mind that under Article 1(4) of the 
Treaty, the restrictions outlined in Article 7 are for the 
benefit of the parties (the United States and Grenada) and the 
invocation and enforcement of these provisions are left 
entirely to the parties. Where any individual alleges that an 
authority in Grenada is seeking to use information or evidence 
obtained from the United States in a manner inconsistent with 
this article, the recourse would be for the person to inform 
the Central Authority of the United States of the allegations, 
for consideration as a matter between the governments.

        Article 8--Testimony or Evidence in the Requested State

    Paragraph 1 states that a person in the Requested State 
from whom testimony or evidence is sought shall be compelled, 
if necessary, to appear and testify or produce items, including 
documents, records, or articles of evidence. The compulsion 
contemplated by this article can be accomplished by subpoena or 
any other means available under the law of the Requested State.
    Paragraph 2 requires that, upon request, the Requested 
State shall furnish information in advance about the date and 
place of the taking of testimony or evidence.
    Paragraph 3 provides that any persons specified in the 
request, including the defendant and his counsel in criminal 
cases, shall be permitted by the Requested State to be present 
and pose questions during the taking of testimony under this 
article.
    Paragraph 4, read together with Article 5(3), insures that 
no person will be compelled to furnish information if he has a 
right not to do so under the law of the Requested State. Thus, 
a witness questioned in the United States pursuant to a request 
from Grenada is guaranteed the right to invoke any of the 
testimonial privileges (e.g., attorney client, interspousal 
privilege) available in the United States, as well as the 
constitutional privilege against self-incrimination, to the 
extent that it might apply in the context of evidence being 
taken for foreign proceedings. \16\ A witness testifying in 
Grenada may raise any of the similar privileges available under 
Grenadan law.
---------------------------------------------------------------------------
    \16\ This is consistent with the approach taken in Title 28, United 
States Code, Section 1782.
---------------------------------------------------------------------------
    Paragraph 4 does require that if a witness attempts to 
assert a privilege that is unique to the Requesting State, the 
Requested State will take the desired evidence and turn it over 
to the Requesting State along with notice that it was obtained 
over a claim of privilege. The applicability of the privilege 
can then be determined in the Requesting State, where the scope 
of the privilege and the legislative and policy reasons 
underlying the privilege are best understood. A similar 
provision appears in many of our recent mutual legal assistance 
treaties. \17\
---------------------------------------------------------------------------
    \17\ See e.g., U.S.-Netherlands Mutual Legal Assistance Treaty, 
June 12, 1981, art. 5(1), T.I.A.S. No. 10734, 1359 U.N.T.S. 209; U.S.-
Bahamas Mutual Legal Assistance Treaty, June 12 & Aug. 18, 1987, art. 
9(2); U.S.-Mexico Mutual Legal Assistance Treaty, supra note 14, art. 
7(2); U.S.-Philippines Mutual Legal Assistance Treaty, supra note 4, 
art. 8(4).
---------------------------------------------------------------------------
    Paragraph 5 states that evidence produced pursuant to this 
article may be authenticated by an attestation, including, in 
the case of business records, authentication in the manner 
indicated in Form A appended to the Treaty. Thus, the provision 
establishes a procedure for authenticating records in a manner 
essentially similar to Title 18, United States Code, Section 
3505. It is understood that the second and third sentences of 
the article provide for the admissibility of authenticated 
documents as evidence without additional foundation or 
authentication. With respect to the United States, this 
paragraph is self-executing, and does not need implementing 
legislation.
    Article 8(5) provides that the evidence authenticated by 
Form A is ``admissible,'' but of course, it will be up to the 
judicial authority presiding over the trial to determine 
whether the evidence should in fact be admitted. The 
negotiators intended that evidentiary tests other than 
authentication (such as relevance and materiality) would still 
have to be satisfied in each case.

               Article 9--Records of Government Agencies

    Paragraph 1 obliges each Party to furnish the other with 
copies of publicly available records, including documents or 
information in any form, possessed by a government department 
or agency in the Requested State. The term ``government 
departments and agencies'' includes all executive, judicial, 
and legislative units of the Federal, State, and local level in 
each country.
    Paragraph 2 provides that the Requested State may share 
with its treaty partner copies of nonpublic information in 
government files. The obligation under this provision is 
discretionary, and such requests may be denied in whole or in 
part. Moreover, the article states that the Requested State may 
only exercise its discretion to turn over information in its 
files ``to the same extent and under the same conditions'' as 
it would to its own law enforcement or judicial authorities. It 
is intended that the Central Authority of the Requested State, 
in close consultation with the interested law enforcement 
authorities of that State, will determine that extent and what 
those conditions would be.
    The discretionary nature of this provision was deemed 
necessary because government files in each State contain some 
kinds of information that would be available to investigative 
authorities in that State, but that justifiably would be deemed 
inappropriate to release to a foreign government. For example, 
assistance might be deemed inappropriate where the information 
requested would identify or endanger an informant, prejudice 
sources of information needed in future investigations, or 
reveal information that was given to the Requested State in 
return for a promise that it not be divulged. Of course, a 
request could be denied under this clause if the Requested 
State's law bars disclosure of the information.
    The delegations discussed whether this article should serve 
as a basis for exchange of information in tax matters. It was 
the intention of the United States delegation that the United 
States be able to provide assistance under the Treaty for tax 
offenses, as well as to provide information in the custody of 
the Internal Revenue Service for both tax offenses and non-tax 
offenses under circumstances that such information is available 
to U.S. law enforcement authorities. The United States 
delegation was satisfied after discussion that this Treaty is a 
``convention relating to the exchange of tax information'' for 
purposes of Title 26, United States Code, Section 6103(k)(4), 
and the United States would have the discretion to provide tax 
return information to Grenada under this article in appropriate 
cases. \18\
---------------------------------------------------------------------------
    \18\ Thus, this treaty, like all of the other U.S. bilateral mutual 
legal assistance treaties, authorizes the Contracting Parties to 
provide tax return information in appropriate circumstances.
---------------------------------------------------------------------------
    Paragraph 3 states that documents provided under this 
article may be authenticated in accordance with the procedures 
specified in the request, and if authenticated in this manner, 
the evidence shall be admissible in evidence in the Requesting 
State. Thus, the Treaty establishes a procedure for 
authenticating official foreign documents that is consistent 
with Rule 902(3) of the Federal Rules of Evidence and Rule 44, 
Federal Rules of Civil Procedure.
    Paragraph 3, similar to Article 8(5), states that documents 
authenticated under this paragraph shall be ``admissible'' but 
it will, of course, be up to the judicial authority presiding 
over the trial to determine whether the evidence should in fact 
be admitted. The evidentiary tests other than authentication 
(such as relevance or materiality) must be established in each 
case.

             Article 10--Testimony in the Requesting State

    This article provides that upon request, the Requested 
State shall invite persons located in its territory to travel 
to the Requesting State to appear before an appropriate 
authority there. It shall notify the Requesting State of the 
invitee's response. An appearance in the Requesting State under 
this article is not mandatory, and the invitation may be 
refused by the prospective witness. The Requesting State would 
be expected to pay the expenses of such an appearance pursuant 
to Article 6 if requested by the person whose appearance is 
sought.
    Paragraph 1 provides that the witness shall be informed of 
the amount and kind of expenses which the Requesting State will 
provide in a particular case. It is assumed that such expenses 
would normally include the costs of transportation, and room 
and board. When the witness is to appear in the United States, 
a nominal witness fee would also be provided.
    Paragraph 2 provides that the Central Authority of the 
Requesting State shall inform the Central Authority of the 
Requested State whether any decision has been made that a 
person who is in the Requesting State pursuant to this article 
shall not be subject to service of process, or be detained or 
subjected to any restriction of personal liberty while he is in 
the Requesting State. Most U.S. mutual legal assistance 
treaties anticipate that the Central Authority will determine 
whether to extend such safe conduct, but under the Treaty with 
Grenada, the Central Authority merely reports whether safe 
conduct has been extended. This is because in Grenada only the 
Director of Public Prosecutions can extend such safe conduct, 
and the Attorney General (who is Central Authority for Grenada 
under Article 3 of the Treaty) cannot do so. The ``safe 
conduct'' is limited to acts or convictions that preceded the 
witness's departure from the Requested State. It is understand 
that this provision would not prevent the prosecution of a 
person for perjury or any other crime committed while in the 
Requesting State.
    Paragraph 3 states that the ``safe conduct'' extended 
pursuant to this article expires seven days after the Central 
Authority of the Requesting State has notified the Central 
Authority of the Requested State that the person's presence is 
no longer required, or when the person leaves the territory of 
the Requesting Party and thereafter returns to it voluntarily. 
However, the competent authorities of the Requested State may 
extend the safe conduct up to fifteen days if it determines 
that there is good cause to do so. For the United States, the 
``competent authority'' for these purposes would be the Central 
Authority; for Grenada, the Director of Public Prosecutions 
would be the appropriate competent authority.

               Article 11--Transfer of Persons in Custody

    In some criminal cases, a need arises for the testimony in 
one country of a witness in custody in another country. In some 
instances, foreign countries are willing and able to ``lend'' 
witnesses to the United States Government, provided the 
witnesses would be carefully guarded while in the United States 
and returned to the foreign country at the conclusion of the 
testimony. On occasion, the United States Justice Department 
has arranged for consenting federal inmates in the United 
States to be transported to foreign countries to assist in 
criminal proceedings. \19\
---------------------------------------------------------------------------
    \19\ For example, in September, 1986, the United States Justice 
Department and the United States Drug Enforcement Administration 
arranged for four federal prisoners to be transported to the United 
Kingdom to testify for the Crown in Regina v. Dye, Williamson, Ells, 
Davies, Murphy, and Millard, a major narcotics prosecution in ``the Old 
Bailey'' (Central Criminal Court) in London.
---------------------------------------------------------------------------
    Paragraph 1 provides an express legal basis for cooperation 
in these matters. It is based on Article 26 of the U.S.-
Switzerland Mutual Legal Assistance Treaty, \20\ which in turn 
is based on Article 11 of the European Convention on Mutual 
Assistance in Criminal Matters. \21\
---------------------------------------------------------------------------
    \20\ U.S.-Switzerland Mutual Legal Assistance Treaty, supra note 
10, art. 26.
    \21\ See also Title 18, United States Code, Section 3508, which 
provides for the transfer to the United States of witnesses in custody 
in other States whose testimony is needed at a federal criminal trial.
---------------------------------------------------------------------------
    Paragraph 2 provides that a person in the custody of the 
Requesting State whose presence in the Requested State is 
sought for purposes of assistance under this Treaty may be 
transferred from the Requesting State to the Requested State 
for that purpose if the person consents and if the Central 
Authorities of both States agree. This would also cover 
situations in which a person in custody in the United States on 
a criminal matter has sought permission to travel to another 
country to be present at a deposition being taken there in 
connection with the case. \22\
---------------------------------------------------------------------------
    \22\ See also United States v. King, 552 F.2d 833 (9th Cir. 1976), 
cert. denied, 430 U.S. 966 (1977), where the defendants insisted on 
traveling to Japan to be present at the deposition of certain witnesses 
in prison there.
---------------------------------------------------------------------------
    Paragraph 3 provides express authority for the receiving 
State to maintain the person in custody throughout the person's 
stay there, unless the sending State specifically authorizes 
release. This paragraph also authorizes the receiving State to 
return the person in custody to the sending State, and provides 
that this return will occur in accordance with terms and 
conditions agreed upon by the Central Authorities. The initial 
transfer of a prisoner under this article requires the consent 
of the person involved and of both Central Authorities, but the 
provision does not require that the person consent to be 
returned to the sending State.
    Once the receiving State has agreed to assist the sending 
State's investigation or proceeding pursuant to this article, 
it would be inappropriate for the receiving State to hold the 
person transferred and require extradition proceedings before 
allowing him to return to the sending State as agreed. 
Therefore, Article 11(3)(c) contemplates that extradition 
proceedings will not be required before the status quo is 
restored by the return of the person transferred. Paragraph 
3(d) states that the person is to receive credit for time 
served while in the custody of the receiving State. This is 
consistent with United States practice in these matters.
    Article 11 does not provide for any specific ``safe 
conduct'' for persons transferred under this article, because 
it is anticipated that the authorities of the two countries 
will deal with such situations on a case-by-case basis. If the 
person in custody is unwilling to be transferred without safe 
conduct, and the Receiving State is unable or unwilling to 
provide satisfactory assurances in this regard, the person is 
free to decline to be transferred.

       Article 12--Location or Identification of Persons or Items

    This article provides for ascertaining the whereabouts in 
the Requested State of persons (such as witnesses, potential 
defendants, or experts) or items if the Requesting State seeks 
such information. This is a standard provision contained in all 
United States mutual legal assistance treaties. The Treaty 
requires only that the Requested State make ``best efforts'' to 
locate the persons or items sought by the Requesting State. The 
extent of such efforts will vary, of course, depending on the 
quality and extent of the information provided by the 
Requesting State concerning the suspected location and last 
known location.
    The obligation to locate persons or items is limited to 
persons or items that are or may be in the territory of the 
Requested State. Thus, the United States would not be obliged 
to attempt to locate persons or items which may be in third 
countries. In all cases, the Requesting State would be expected 
to supply all available information about the last known 
location of the persons or items sought.

                    Article 13--Service of Documents

    This article creates an obligation on the Requested State 
to use its best efforts to effect the service of documents such 
as summons, complaints, subpoenas, or other legal papers 
relating in whole or in part to a Treaty request. Identical 
provisions appear in several U.S. mutual legal assistance 
treaties.
    It is expected that when the United States is the Requested 
State, service under the Treaty will be made by registered mail 
(in the absence of any request by Grenada to follow a specified 
procedure for service) or by the United States Marshal's 
Service in instances in which personal service is requested.
    Paragraph 2 provides that when the documents to be served 
call for the appearance of a person in the Requesting State, 
the documents should be received by the Central Authority of 
the Requested State a reasonable time before the date set for 
any such appearance.
    Paragraph 3 requires that proof of service be returned to 
the Requesting State in the manner specified in the request.

                     Article 14--Search and Seizure

    It is sometimes in the interests of justice for one State 
to ask another to search for, secure, and deliver articles or 
objects needed in the former as evidence or for other purposes. 
United States courts can and do execute such requests under 
Title 28, United States Code, Section 1782. \23\ This article 
creates a formal framework for handling such requests.
---------------------------------------------------------------------------
    \23\ See e.g., United States ex Rel. Public Prosecutor of 
Rotterdam, Netherlands v. Van Aalst, Case No 84-52-M-01 (M.D. Fla., 
Orlando Div.) (search warrant issued February 24, 1984). The courts of 
other states in the eastern Caribbean have the power to execute 
requests for such searches, too. See, e.g., Section 21, Grenada Mutual 
Assistance Act 1992; Section 22, Dominica Mutual Assistance Act 1990.
---------------------------------------------------------------------------
    The article requires that the search and seizure request 
include ``information justifying such action under the laws of 
the Requested State.'' This means that normally a request to 
the United States from Grenada will have to be supported by a 
showing of probable cause for the search. A United States 
request to Grenada would have to satisfy the corresponding 
evidentiary standard there, which is ``a reasonable basis to 
believe'' that the specified premises contains articles likely 
to be evidence of the commission of an offense.
    Paragraph 2 is designed to ensure that a record is kept of 
articles seized and of articles delivered up under the Treaty. 
This provision effectively requires that, upon request, every 
official who has custody of a seized item shall certify, 
through the use of Form C appended to this Treaty, the 
continuity of custody, the identity of the item, and the 
integrity of its condition.
    The article also provides that the certificates describing 
continuity of custody will be admissible without additional 
authentication at trial in the Requesting State, thus relieving 
the Requesting State of the burden, expense, and inconvenience 
of having to send its law enforcement officers to the Requested 
State to provided authentication and chain of custody testimony 
each time the Requesting State uses evidence produced pursuant 
to this article. As in Articles 8(5) and 9(3), the injunction 
that the certificates be admissible without additional 
authentication at trial leaves the trier of fact free to bar 
use of the evidence itself, in spite of the certificate, if 
there is some other reason to do so aside from authenticity or 
chain of custody.
    Paragraph 3 states that the Requested state may require 
that the Requesting State agree to terms and conditions 
necessary to protect the interests of third parties in the item 
to be
    transferred. This article is similar to provisions in many 
other United States mutual legal assistance treaties. \24\
---------------------------------------------------------------------------
    \24\ See e.g., U.S.-Argentina Mutual Legal Assistance Treaty, supra 
note 4; U.S.-Bahamas Mutual Legal Assistance Treaty, supra note 17; 
U.S.-Canada Mutual Legal Assistance Treaty, supra note 14; U.S.-U.K. 
Mutual Legal Assistance Treaty Concerning the Cayman Islands, Jul. 3, 
1986; U.S.- Hungary Mutual Legal Assistance Treaty, Dec. 1, 1994; U.S.- 
Korea Mutual Legal Assistance Treaty, Nov. 23, 1993; U.S.- Panama 
Mutual Legal Assistance Treaty, Apr. 11, 1991; U.S.- Philippines Mutual 
Legal Assistance Treaty, supra note 4; U.S.-Spain Mutual Legal 
Assistance Treaty, Nov. 20, 1990; U.S.-United Kingdom Mutual Legal 
Assistance Treaty, Jan. 6, 1994.
---------------------------------------------------------------------------

                      Article 15--Return of Items

    This procedural article provides that any documents or 
items of evidence furnished under the Treaty must be returned 
to the Requested State as soon as possible. The delegations 
understood that the requirement would be invoked only if the 
Central Authority of the Requested State specifically requests 
it at the time that the items are delivered to the Requesting 
State. It is anticipated that unless original records or 
articles of significant intrinsic value are involved, the 
Requested State will not usually request return of the items, 
but this is a matter best left to development in practice.

            Article 16--Assistance in Forfeiture Proceedings

    A major goal of the Treaty is to enhance the efforts of 
both the United States and Grenada in combating narcotics 
trafficking. One significant strategy in this effort is action 
by United States authorities to seize and confiscate money, 
property, and other proceeds of drug trafficking.
    Article 16 is similar to a number of United States mutual 
legal assistance treaties, including Article 17 in the U.S.-
Canada Mutual Legal Assistance Treaty and Article 15 of the 
U.S.-Thailand Mutual Legal Assistance Treaty. The first 
paragraph authorizes the Central Authority of one State to 
notify the other of the existence in the latter's territory of 
proceeds or instrumentalities of offenses that may be 
forfeitable or otherwise subject to seizure. The term 
``proceeds or instrumentalities'' was intended to include 
things such as money, vessels, or other valuables either used 
in the crime or purchased or obtained as a result of the crime.
    Upon receipt of notice under this article, the Central 
Authority of the State in which the proceeds or 
instrumentalities are located may take whatever action is 
appropriate under its law. For instance, if the assets in 
question are located in the United States and were obtained as 
a result of a fraud in Grenada, they could be seized under 18 
U.S.C. 981 in aid of a prosecution under Title 18, United 
States Code, Section 2314, \25\ or be subject to a temporary 
restraining order in anticipation of a civil action for the 
return of the assets to the lawful owner. Proceeds of a foreign 
kidnapping, robbery, extortion or a fraud by or against a 
foreign bank are civilly and criminally forfeitable in the U.S. 
since these offenses are predicate offenses under U.S. money 
laundering laws. \26\ Thus, it is a violation of United States 
criminal law to launder the proceeds of these foreign fraud or 
theft offenses, when such proceeds are brought into the United 
States.
---------------------------------------------------------------------------
    \25\ This statute makes it an offense to transport money or 
valuables in interstate or foreign commerce knowing that they were 
obtained by fraud in the United States or abroad.
    \26\ Title 18, United States Code, Section 1956(c)(7)(B).
---------------------------------------------------------------------------
    If the assets are the proceeds of drug trafficking, it is 
especially likely that the Contracting Parties will be able and 
willing to help one another. Title 18, United States Code, 
Section 981(a)(1)(B) allows for the forfeiture to the United 
States of property ``which represents the proceeds of an 
offense against a foreign nation involving the manufacture, 
importation, sale, or distribution of a controlled substance 
(as such term is defined for the purposes of the Controlled 
Substance Act) within whose jurisdiction such offense or 
activity would be punishable by death or imprisonment for a 
term exceeding one year if such act or activity had occurred 
within the jurisdiction of the United States.'' This is 
consistent with the laws in other countries, such as 
Switzerland and Canada, and there is a growing trend among 
nations toward enacting legislation of this kind in the battle 
against narcotics trafficking. \27\ The United States 
delegation expects that Article 16 of the Treaty will enable 
this legislation to be even more effective.
---------------------------------------------------------------------------
    \27\ Article 5 of the United Nations Convention Against Illicit 
Traffic in Narcotic Drugs and Psychotropic Substances, calls for the 
States that are party to enact legislation to forfeit illicit drug 
proceeds and to assist one another in such matters. United Nations 
Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic 
Substances, with annex and final act, done at Vienna, Dec. 20, 1988.
---------------------------------------------------------------------------
    Paragraph 2 states that the Parties shall assist one 
another to the extent permitted by their laws in proceedings 
relating to the forfeiture of the proceeds or instrumentalities 
of offenses, to restitution to crime victims, or to the 
collection of fines imposed as sentences in criminal 
convictions. It specifically recognizes that the authorities in 
the Requested State may take immediate action to temporarily 
immobilize the assets pending further proceedings. Thus, if the 
law of the Requested State enables it to seize assets in aid of 
a proceeding in the Requesting State or to enforce a judgment 
of forfeiture levied in the Requesting State, the Treaty 
provides that the Requested State shall do so. The language of 
the article is carefully selected, however, so as not to 
require either State to take any action that would exceed its 
internal legal authority. It does not mandate institution of 
forfeiture proceedings or initiation of temporary 
immobilization in either country against property identified by 
the other if the relevant prosecution authorities do not deem 
it proper to do so.
    United States law permits the government to transfer a 
share of certain forfeited property to other countries that 
participate directly or indirectly in the seizure or forfeiture 
of the property. Under regulations promulgated by the Attorney 
General, the amount transferred generally reflects the 
contribution of the foreign government in law enforcement 
activity which led to the seizure and forfeiture of the 
property. The law requires that the transfer be authorized by 
an international agreement between the United States and the 
foreign country, and be approved by the Secretary of State. 
\28\ Paragraph 3 is consistent with this framework, and will 
enable a Contracting Party having custody over proceeds or 
instrumentalities of offenses to transfer forfeited assets, or 
the proceeds of the sale of such assets, to the other 
Contracting Party at the former's discretion and to the extent 
permitted by their respective laws.
---------------------------------------------------------------------------
    \28\ See Title 18, United States Code, Section 981(i)(1).
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           Article 17--Compatibility with Other Arrangements

    This article states that assistance and procedures provided 
by this Treaty shall not prevent assistance under any other 
applicable international agreements. Article 17 also provides 
that the Treaty shall not be deemed to prevent recourse to any 
assistance available under the internal laws of either country. 
Thus, the Treaty would leave the provisions of United States 
and Grenada law on letters rogatory completely undisturbed, and 
would not alter any pre-existing agreements concerning 
investigative assistance. \29\
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    \29\ E.g., the U.S.-Grenada Agreement for the Exchange of 
Information With Respect to Taxes, signed at Washington December 18, 
1986, entered into force July 13, 1987 (TIAS 11410).
---------------------------------------------------------------------------

                        Article 18--Consultation

    Experience has shown that as the parties to a treaty of 
this kind work together over the years, they become aware of 
various practical ways to make the treaty more effective and 
their own efforts more efficient. This article anticipates that 
the Contracting Parties will share those ideas with one 
another, and encourages them to agree on the implementation of 
such measures. Practical measures of this kind might include 
methods of keeping each other informed of the progress of 
investigations and cases in which Treaty assistance was 
utilized, or the use of the Treaty to obtain evidence that 
otherwise might be sought via methods less acceptable to the 
Requested State. Very similar provisions are contained in 
recent United States mutual legal assistance treaties. \30\ It 
is anticipated that the Central Authorities will conduct annual 
consultations pursuant to this article.
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    \30\ See e.g., U.S.-Philippines Mutual Legal Assistance Treaty, 
supra note 4, art. 18; U.S.-Canada Mutual Legal Assistance Treaty, 
supra note 14, art. XVIII; U.S.-U.K. Mutual Legal Assistance Treaty 
Concerning the Cayman Islands, supra note 24, art. 18; U.S.-Argentina 
Mutual Legal Assistance Treaty, supra note 4, art. 18. Article 19--
Ratification, Entry Into Force, and Termination
---------------------------------------------------------------------------
    Paragraph 1 contains standard provisions on the procedure 
for ratification and the exchange of the instruments of 
ratification.
    Paragraph 2 provides that the Treaty shall enter into force 
immediately upon the exchange of instruments of ratification.
    Paragraph 3 provides that the Treaty shall apply to any 
request presented pursuant to it after it enters into force, 
even if the relevant acts or omissions occurred before the date 
on which the Treaty entered into force. Provisions of this kind 
are common in law enforcement agreements.
    Paragraph 4 contains standard provisions concerning the 
procedure for terminating the Treaty. Termination shall take 
effect six months after the date of written notification. 
Similar termination provisions are included in other United 
States mutual legal assistance treaties.

   Technical Analysis of The Agreement Between The Government of the 
  United States of America and the Government of Hong Kong on Mutual 
                  Legal Assistance in Criminal Matters

    On April 15, 1997, representatives of the Governments of 
the United States and Hong Kong signed the Agreement on Mutual 
Legal Assistance in Criminal Matters (``the Agreement''). \1\ 
In recent years, the United States has entered into similar 
treaties with many other countries as part of a highly 
successful effort to modernize the legal tools available to law 
enforcement authorities in need of foreign evidence for use in 
criminal cases.
---------------------------------------------------------------------------
    \1\ Although styled an Agreement, for purposes of U.S. law the 
instrument will be considered a treaty and is therefore being submitted 
to the Senate for advice and consent to ratification.
---------------------------------------------------------------------------
    Hong Kong reverted to the sovereignty of the People's 
Republic of China (PRC) on July 1, 1997, and is now known as 
the Hong Kong Special Administrative Region (HKSAR). \2\ At the 
time this Mutual Legal Assistance Agreement was negotiated and 
signed, Hong Kong was a crown colony of the United Kingdom, 
which granted the Hong Kong Government an entrustment 
authorizing it to negotiate and enact this Agreement directly 
with the United States. In order to ensure that the Agreement 
would remain in force after 1997, a draft text of the Agreement 
was presented to the Joint Liaison Group (JLG), which is 
composed of representatives of both the British and Chinese 
Governments, and meets periodically to discuss issues related 
to the status of post-1997 Hong Kong. The JLG approved the 
commencement of negotiations, and the final text was approved 
by the JLG prior to signing. Thus, the PRC agreed, through the 
JLG, to permit Hong Kong to negotiate this Agreement, approved 
its final terms, and has indicated that it will continue beyond 
1997. In addition, the Government of the PRC has provided the 
U.S. Government with a diplomatic note confirming that 
intention.
---------------------------------------------------------------------------
    \2\ For convenience, the HKSAR will be referred to herein as Hong 
Kong.
---------------------------------------------------------------------------
    The Agreement was negotiated in three rounds, over the 
course of approximately one year. It is the fourth such 
agreement the United States has signed with a country or 
jurisdiction in Asia, and is a major advance for the United 
States in its efforts to combat transnational organized crime, 
terrorism, drug trafficking and other offenses. \3\ The 
Agreement is also important for Hong Kong, as it reflects a 
formal commitment by the United States to assist in high 
priority investigations of financial crimes and other illicit 
activity.
---------------------------------------------------------------------------
    \3\ The U.S. also has Mutual Legal Assistance Treaties in force 
with Thailand, the Philippines and South Korea.
---------------------------------------------------------------------------
    It is anticipated that the Agreement will be implemented in 
the United States pursuant to the procedural framework provided 
by Title 28, United States Code, Section 1782. No new 
implementing legislation will be needed. Hong Kong has enacted 
its own internal implementing legislation that will apply to 
requests under the Agreements.
    The following technical analysis of the Agreement was 
prepared by the United States delegation that conducted the 
negotiations.

                     Article 1--Scope of Assistance

    This article provides for assistance ``in connection with 
the investigation, prosecution, and prevention of criminal 
offences, and in proceedings related to criminal matters.''
    The negotiators specifically agreed that the term 
``investigation'' includes grand jury proceedings in the United 
States and similar pre-charge proceedings in Hong Kong, as well 
as administrative criminal investigations and other legal 
measures taken prior to the filing of formal charges in either 
Party. \4\ The term ``proceedings'' was intended to cover the 
full range of proceedings in a criminal case, including such 
matters as bail and sentencing hearings. \5\ It was also agreed 
that since the phrase ``proceedings related to criminal 
matters'' is broader than the investigation, prosecution or 
sentencing process itself, proceedings covered by the Agreement 
need not be strictly criminal in nature. For instance, 
proceedings to forfeit to the government the proceeds of 
illegal drug trafficking may be civil in nature; \6\ such 
proceedings are covered by the Agreement.
---------------------------------------------------------------------------
    \4\ The requirement that assistance be provided under the Agreement 
at the pre-indictment stage is critical to the United States, as our 
investigators and prosecutors often need to obtain evidence from 
foreign countries in order to determine whether to file criminal 
charges. This obligation is a reciprocal one, and the United States 
must assist Hong Kong under the Agreement in connection with 
investigations prior to the filing of charges in Hong Kong.
    \5\ One United States court has interpreted Title 28, United States 
Code, Section 1782 as permitting the execution of a request for 
assistance from a foreign country only if the evidence sought is for 
use in proceedings before an adjudicatory ``tribunal'' in the foreign 
country. See In re Letters Rogatory Issued by Director of Inspection of 
Gov't of India, 385 F.2d 1017 (2d Cir. 1967); Fonseca v. Blumenthal, 
620 F.2d 322 (2d Cir. 1980). This rule poses an unnecessary obstacle to 
the execution of requests concerning matters at the investigatory stage 
and those matters customarily handled by administrative officials in 
the Requesting Party. Since this paragraph specifically permits 
requests to be made in connection with matters not within the 
jurisdiction of an adjudicatory ``tribunal'' in the Requesting Party, 
this paragraph accords courts broader authority to execute requests 
than does Title 28, United States Code, Section 1782, as interpreted in 
the India and Fonseca cases.
    \6\ See 21 U.S.C. Sec.  881; 18 U.S.C. Sec.  1964.
---------------------------------------------------------------------------
    Paragraph 2 sets forth a list of the major types of 
assistance specifically considered by the negotiators. Most of 
the items listed in paragraph 2 are described in further detail 
in subsequent articles. The list is not intended to be 
exhaustive, a fact that is signalled by the word ``include'' in 
the opening clause of the paragraph and is reinforced by the 
final subparagraph.
    Paragraph 3 mandates that assistance shall not be refused 
with respect to ``criminal offences related to taxation, 
customs duties, foreign exchange control, or other revenue 
matters,'' but assistance shall not be provided with respect to 
non-criminal proceedings related to such offenses.
    Paragraph 4 contains a standard provision in United States 
mutual legal assistance treaties \7\ that states that the 
Agreement is intended solely for government-to-government 
mutual legal assistance. The Agreement is not intended to 
provide to private persons a means of evidence-gathering, or to 
extend generally to civil matters. Private litigants in the 
United States may continue to obtain evidence from Hong Kong by 
letters rogatory, an avenue of international assistance that 
the Agreement leaves undisturbed. Similarly, this paragraph 
provides that the Agreement is not intended to create any right 
in a private person to exclude or suppress evidence provided 
pursuant to the Agreement.
---------------------------------------------------------------------------
    \7\ See United States v. Johnpoll, 739 F.2d 702 (2d Cir. 1984).
---------------------------------------------------------------------------

                     Article 2--Central Authorities

    This article requires that each Party establish a ``Central 
Authority'' for transmission, receipt, and handling of requests 
made under the Agreement. The Central Authority for the United 
States makes all requests to Hong Kong on behalf of federal 
agencies, state agencies, and local law enforcement authorities 
in the United States. The Hong Kong Central Authority makes all 
requests initiated by officials in Hong Kong.
    The Central Authority for the Requesting Party exercises 
discretion as to the form and content of requests, and the 
number and priority of requests. The Central Authority for the 
Requested Party is responsible for receiving each request, 
transmitting it to the appropriate federal or state agency, 
court, or other authority for execution, and ensuring that a 
timely response is made.
    Paragraph 2 provides that the Attorney General or a person 
authorized by the Attorney General acts as the Central 
Authority for the United States. The Attorney General has 
delegated the authority to handle the duties of Central 
Authority under mutual assistance treaties to the Assistant 
Attorney General in charge of the Criminal Division. \8\ 
Paragraph 2 also states that the Attorney General of Hong Kong 
or a person authorized by the Attorney General serves as the 
Central Authority for Hong Kong.
---------------------------------------------------------------------------
    \8\ 28 C.F.R. Sec.  0.64-1. The Assistant Attorney General for the 
Criminal Division has in turn delegated this authority to the Deputy 
Assistant Attorneys General and the Director of the Criminal Division's 
Office of International Affairs, in accordance with the regulation. 
Directive No. 81, 44 Fed. Reg. 18,661 (1979), as amended at 45 Fed. 
Reg. 79,758 (1980); 48 Fed. Reg. 54,595 (1983). That delegation 
subsequently was extended to the Deputy Directors of the Office of 
International Affairs. 59 Fed. Reg. 42,160 (1994).
---------------------------------------------------------------------------
    Paragraph 3 states that the Central Authorities shall 
communicate with one another directly. It is anticipated that 
such communication will be accomplished by telephone, telefax 
or by any other means acceptable to the Central Authorities 
themselves.

             Article 3--Limitations on Providing Assistance

    This article specifies the limited classes of cases in 
which assistance may be denied under the Agreement.
    Article 3 sets forth the circumstances under which the 
Requested Party may deny assistance under the Agreement. A 
request shall be denied if it impairs the sovereignty, 
security, or public order of the United States or the PRC; or 
if the Central Authority is of the opinion that granting the 
request would impair the Requested Party's essential interests, 
\9\ or that the request for assistance relates to a political 
offense \10\ or there are substantial grounds for believing the 
request was made for the purpose of prosecuting, punishing, or 
otherwise proceeding against a person on account of the 
person's race, religion, nationality, or political opinions.
---------------------------------------------------------------------------
    \9\ The Department of Justice, in its role as Central Authority for 
the United States, would work closely with the Department of State and 
other government agencies to determine whether to execute a request 
which might fall in this category. A fundamental purpose of the 
Agreement is to enhance law enforcement cooperation, and that interest 
would be hampered if sensitive law enforcement information available 
under the Agreement were to fall into the wrong hands. Therefore, the 
United States Central Authority would decline to provide sensitive or 
confidential drug related information pursuant to a request under the 
Agreement whenever it determines, after appropriate consultation with 
law enforcement, intelligence, and foreign policy agencies, that a 
senior foreign government official who will have access to the 
information is engaged in or facilitates the production or distribution 
of illegal drugs. This is consistent with the sense of the Senate as 
expressed in its advice and consent to ratification of the other mutual 
legal assistance treaties. See, e.g., Cong Rec 13884, October 24, 1989. 
See also Mutual Legal Assistance Treaty Concerning the Cayman Islands: 
Report by the Committee on Foreign Relations, 100th Cong., 2nd Sess. 67 
(1988) (Testimony of Deputy Assistant Attorney General Mark M Richard).
    \10\ Similar restrictions are found in other mutual legal 
assistance treaties.
---------------------------------------------------------------------------
    The Central Authority will also refuse assistance for 
certain crimes if it determines that dual criminality does not 
exist. Article 3(1)(d) provides that the Central Authority 
shall refuse assistance if it is of the opinion that the acts 
or omissions alleged would not have constituted a criminal 
offense if they had taken place within the jurisdiction of the 
Requested Party, or would not constitute in the Requesting 
Party any of the offenses described in the Annex to the 
Agreement. The Annex to the Agreement describes a number of 
major offenses for which assistance must be provided without 
regard to whether the offense would constitute an offense under 
the laws of the Requested Party.
    Finally, the Central Authority is permitted to deny 
assistance if the request relates to an offense under military 
law that would not be an offense under ordinary criminal law; 
the request relates to the prosecution of a person for a 
criminal offense for which the person has been convicted or 
acquitted in the Requested Party; or the request is not made in 
conformity with the Agreement.
    Before denying assistance under Article 3, the Central 
Authority of the Requested Party is required to consult with 
its counterpart in the Requesting Party to consider whether 
assistance can be given subject to such conditions as it deems 
necessary. If the Requesting Party accepts assistance subject 
to conditions, it shall comply with the conditions. If the 
Central Authority of the Requested Party denies assistance, it 
shall inform the Central Authority of the Requesting Party of 
the reasons for the denial.

                Article 4--Form and Contents of Requests

    Paragraph 1 requires that requests be in writing, except 
that the Central Authority of the Requested Party may accept an 
oral request in ``urgent cases.'' A request in such a situation 
must be confirmed in writing promptly.
    Paragraph 2 provides that the request and all supporting 
documents accompanying the request shall be submitted in an 
official language of the Requested Party. \11\
---------------------------------------------------------------------------
    \11\ Hong Kong has two official languages, English and Chinese.
---------------------------------------------------------------------------
    Paragraph 3 lists information deemed crucial to the 
efficient operation of the Agreement which must be included in 
each request. Paragraph 4 outlines the types of information 
that are important but not always crucial, and should be 
provided ``to the extent necessary and possible.'' In keeping 
with the intention of the Parties that requests be as simple 
and straightforward as possible, there is no requirement under 
the Agreement that a request be legalized or certified in any 
particular manner.

                    Article 5--Execution of Requests

    Paragraph 1 requires that the Central Authority of the 
Requested Party execute a request or arrange for its execution. 
The Agreement contemplates that upon receiving a request, the 
Central Authority will first review the request, then promptly 
notify the Central Authority of the Requesting Party if the 
request does not appear to comply with the Agreement's terms. 
If the request does satisfy the Agreement's requirements and 
the assistance sought can be provided by the Central Authority 
itself, the request will be fulfilled forthwith. If the request 
meets the Agreement's requirements but its execution requires 
action by some other entity in the Requested Party, the Central 
Authority will promptly transmit the request to the correct 
entity for execution. When the United States is the Requested 
Party, it is anticipated that the Central Authority will 
transmit most requests for execution to the federal 
investigators, prosecutors, or judicial officials it deems 
appropriate to fulfill the request.
    Paragraph 2 requires the competent authorities responsible 
for executing the request to use their ``best efforts.'' This 
provision is not intended or understood to authorize the use of 
the grand jury in the United States for the collection of 
evidence pursuant to a request from Hong Kong. Rather, it is 
anticipated that when a request from Hong Kong requires 
compulsory process for execution, the Department of Justice 
will ask a federal court to issue the necessary process under 
Title 28, United States Code, Section 1782, and the provisions 
of the Agreement. This paragraph specifically authorizes courts 
of the Requested Party to use their powers to issue subpoenas, 
search warrants, or other orders to satisfy requests under the 
Agreement.
    Paragraph 3 provides that all requests shall be executed as 
empowered by the Agreement or by the laws of the Requested 
Party. Thus, the method of executing a request for assistance 
under the Agreement must be in accordance with the Requested 
Party's internal laws or specific procedures in the Agreement 
itself. For the United States, the Agreement is intended to be 
self-executing; no new or additional legislation will be needed 
to carry out the obligations undertaken.
    Paragraph 4 states that a request for assistance need not 
be executed immediately when execution will interfere with an 
ongoing criminal investigation, prosecution or proceeding in 
the Requested Party. Rather, the Central Authority of the 
Requested Party may postpone execution or make execution 
subject to certain conditions. The Requested Party must comply 
with the conditions if it accepts assistance subject to these 
conditions.
    Paragraph 5 requires the Requested Party promptly to inform 
the Requesting Party of circumstances likely to result in a 
significant delay in responding to the request.
    It is anticipated that some United States requests for 
assistance may contain information that under our law must be 
kept confidential, for example, information that is ordinarily 
protected by Rule 6(e), Federal Rules of Criminal Procedure. 
Therefore, paragraph 6 enables the Requesting Party to call 
upon the Requested Party to keep the information in the request 
confidential. \12\ If the Requested Party cannot execute the 
request without disclosing the information in question (as may 
be the case if execution requires a public judicial proceeding 
in the Requested Party), or if for some other reason this 
confidentiality cannot be assured, the Agreement obliges the 
Requested Party to so indicate, thereby giving the Requesting 
Party an opportunity to withdraw the request rather than risk 
jeopardizing its investigation or proceeding by public 
disclosure of the information.
---------------------------------------------------------------------------
    \12\ This provision is similar to language in other United States 
mutual legal assistance treaties. See, e.g., U.S.-Mexico Mutual Legal 
Assistance Treaty, Dec. 9. 1987, Art. 4(5); U.S.-Canada Mutual Legal 
Assistance Treaty, Mar. 18, 1985; U.S.-Italy Mutual Legal Assistance 
Treaty, Nov. 9, 1982, Art. 8(2); U.S.-Philippines Mutual Legal 
Assistance Treaty, Nov. 13, 1994, Art. 5(5).
---------------------------------------------------------------------------
    Paragraph 7 requires the Central Authority of the Requested 
Party to respond to reasonable inquiries by the Requesting 
Party concerning progress toward execution of its requests. 
This is intended to encourage open communication between the 
Central Authorities in monitoring the status of specific 
requests.
    Paragraph 8 provides that the Central Authority of the 
Requested Party must promptly notify the Central Authority of 
the Requesting Party of the outcome of the execution of a 
request. If the request is denied in whole or in part, the 
Central Authority of the Requested Party must explain the 
reasons for the outcome to the Central Authority of the 
Requesting Party. For example, if the evidence sought cannot be 
located, or if a witness to be interviewed invokes a privilege 
under article 9(5), the Central Authority of the Requested 
Party must report this to the Central Authority of the 
Requesting Party.

                 Article 6--Representation and Expenses

    This article reflects the increasingly accepted 
international rule that each Party shall bear the expenses 
incurred within its territory in executing a legal assistance 
treaty request. This article is consistent with similar 
provisions in other United States mutual legal assistance 
treaties. \13\
---------------------------------------------------------------------------
    \13\ See, e.g., U.S.-Canada Mutual Legal Assistance Treaty, Mar. 
18, 1985, Art. 8; U.S.-Philippines Mutual Legal Assistance Treaty, Nov. 
13, 1994, Art. 6.
---------------------------------------------------------------------------
    In paragraph 1, it is understood that if execution of the 
request entails action by a judicial or administrative agency, 
the Central Authority of the Requested Party shall arrange for 
the presentation of the request to that court or agency at no 
cost to the Requesting Party. Since the cost of retaining 
counsel abroad to present and process letters rogatory is 
expensive at times, this provision for reciprocal legal 
representation is a significant improvement in international 
legal cooperation.
    Paragraph 2 does oblige the Requesting Party to pay fees of 
retained counsel; expert witnesses; translation, 
interpretation, and transcription costs; and allowances and 
expenses related to travel of persons pursuant to Articles 11 
and 12.
    Paragraph 3 requires consultations between the Parties 
should it become evident during the course of executing the 
request that ``expenses of an extraordinary nature'' would be 
necessary to provide the assistance.

                     Article 7--Limitations on Use

    Paragraph 1 states that the Central Authority of the 
Requested Party may require that information or evidence 
provided under the Agreement not be used in any investigation, 
prosecution or proceeding other than that stated in the request 
without the prior consent of the Requested Party. In such 
cases, the Requesting Party must comply with the requirements. 
It will be recalled that Article 4(3)(d) states that the 
Requesting Party must specify the reason why information or 
evidence is sought.
    It is not anticipated that the Central Authority of the 
Requested Party will routinely request use limitations under 
paragraph 1. Rather, it is expected that such limitations will 
be requested sparingly, only when there is good reason to 
restrict the use of the evidence. Indeed, it was agreed that 
neither Party would object to stating in the request that 
subsequent civil use is contemplated for information or 
evidence provided pursuant to the purposes stated in Article 1. 
In such a case, no prior consent of the Central Authority of 
the Requested Party would be required under Article 7 (1).
    Paragraph 2 permits the Requested Party to request that 
information or evidence provided to the Requesting Party be 
kept confidential or be used only subject to terms and 
conditions it specifies. Under most United States mutual legal 
assistance treaties, conditions of confidentiality are imposed 
only when necessary and are tailored to fit the circumstances 
of each particular case. For instance, the Requested Party may 
wish to cooperate with the investigation in the Requesting 
Party but choose to limit access to information that might 
endanger the safety of an informant, or unduly prejudice the 
interests of persons not connected in any way with the matter 
being investigated in the Requesting Party. Paragraph 2 
requires that if conditions of confidentiality are imposed, the 
Requesting Party must comply with them.
    Paragraph 3 provides that nothing in this article shall 
preclude the use or disclosure of information in a criminal 
prosecution to the extent that there is an obligation to do so 
under the U.S. Constitution or Hong Kong law. This provision 
was included because if the United States government receives 
evidence under the Agreement that appears to be exculpatory to 
a defendant in a criminal case, the government is obliged to 
share the evidence with the defendant. \14\ Advance notice of 
any such proposed use or disclosure must be provided by the 
Requesting Party to the Requested Party. The Hong Kong 
delegation asked whether information it might supply in 
response to a request by the United States under the Agreement 
could be disclosed under the Freedom of Information Act. The 
delegations agreed that paragraph 3, as drafted, does not 
authorize disclosure under the Freedom of Information Act of 
information provided under the Agreement.
---------------------------------------------------------------------------
    \14\ See Brady v. Maryland, 373 U.S. 83 (1963).
---------------------------------------------------------------------------
    Paragraph 4 states that once evidence obtained under the 
Agreement is revealed to the public in accordance with 
paragraphs 1 or 2, the Requesting Party is authorized to use 
the evidence for any purpose. Once evidence obtained under the 
Agreement is revealed to the public in a trial, that 
information effectively becomes part of the public domain. The 
information is likely to become a matter of common knowledge, 
perhaps even being cited or described in the press. Once that 
occurs, it is practically impossible for the Central Authority 
of the Requesting Party to block the use of that information by 
third parties.
    It should be noted that under Article 1(4), the 
restrictions outlined in Article 7 are for the benefit of the 
Parties, and the invocation and enforcement of these provisions 
are left entirely to the Parties. If a private person believes 
that a Hong Kong authority seeks to use information or evidence 
obtained from the United States in a manner inconsistent with 
this article, the person can inform the Central Authority of 
the United States of the allegations for consideration as a 
matter between the Parties.

                    Article 8--Statements of Persons

    This article provides that, upon receipt of a request for a 
statement of a person for use in an investigation, prosecution 
or proceeding related to a criminal matter, the Requested Party 
must attempt to obtain the statement with the consent of the 
person.
    This article further illustrates the Parties' intention to 
provide assistance to one another on a broad basis, as 
indicated in Article 1(2)(a).

   Article 9--Taking of Evidence or Testimony in the Requested Party

    Paragraph 1 provides that a person in the Requested Party 
from whom evidence is sought shall be compelled, if necessary, 
to appear and give evidence. The compulsion contemplated by 
this article can be accomplished by subpoena or any other means 
available under the law of the Requested Party.
    Paragraph 2 sets forth that the giving or taking of 
evidence includes testimony and the production of documents, 
records, or items. This paragraph illustrates one of the 
advantages of a mutual legal assistance agreement over letters 
rogatory. For the first time, there is clear legal authority 
for the Parties to assist each other in gathering physical 
evidence. In the past, Hong Kong law provided only for 
assistance in obtaining testimony or documentary evidence.
    Paragraph 3 requires that, upon request, the Requested 
Party must furnish information in advance about the date and 
place of the taking of evidence.
    Paragraph 4 provides that any persons specified in the 
request shall be permitted to be present during the execution 
of the request and, to the extent allowed by the Requested 
Party's laws, to pose questions to the person giving the 
testimony or evidence. These persons would include the 
defendant and defense counsel in a criminal case. The Hong Kong 
delegation indicated that the presence of these persons is 
provided for in Hong Kong law. It is understood that in the 
event that direct questioning of a witness is not possible, the 
defendant and defense counsel may submit questions for the 
judge to pose to the person whose testimony or evidence is 
being taken.
    Paragraph 5, when read in conjunction with article 5(3), 
ensures that no person will be compelled to furnish information 
if the person has a right not to do so under the law of the 
Requested Party. Thus, a witness questioned in the United 
States pursuant to a request from Hong Kong is guaranteed the 
right to invoke any of the testimonial privileges (e.g., 
attorney-client, interspousal) available in the United States, 
as well as the constitutional privilege against self-
incrimination, to the extent that it applies in the context of 
evidence being taken for foreign proceedings. \15\ A witness 
testifying in Hong Kong may raise any of the similar privileges 
available under Hong Kong law.
---------------------------------------------------------------------------
    \15\ This is consistent with the approach taken in Title 28, United 
States Code, Section 1782.
---------------------------------------------------------------------------
    If a witness attempts to assert a privilege that is unique 
to the Requesting Party, this paragraph does require that the 
Requested Party take the desired evidence and turn it over to 
the Requesting Party along with notice that it was obtained 
over a claim of privilege. The applicability of the privilege 
can then be determined in the Requesting Party, where the scope 
of the privilege and the legislative and policy reasons 
underlying the privilege are better understood. A similar 
provision appears in many of our recent mutual legal assistance 
treaties. \16\
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    \16\ See, e.g., U.S.-Netherlands Mutual Legal Assistance Treaty, 
June 12, 1981, Art. 5(1), T.I.A.S. No. 10734, 1359 U.N.T.S. 209; U.S.-
Bahamas Mutual Legal Assistance Treaty, June 12 & Aug. 18, 1987, Art. 
9(2); U.S.-Mexico Mutual Legal Assistance Treaty, Dec. 9, 1987, Art. 
7(2); U.S.-Philippines Mutual Legal Assistance Treaty, Nov. 13, 1994, 
Art. 8(4).
---------------------------------------------------------------------------
    Paragraph 6 states that documents, records, and any other 
items produced pursuant to this article or that are the subject 
of testimony taken under this article may be certified in 
accordance with procedures specified in the request. (See Form 
A attached to the exchange of letters dated April 15, 1997 and 
made part of this Agreement for use when the U.S. is the 
Requesting Party.) If certified in accordance with such 
procedures, they shall be admissible in courts of the Requested 
Party as proof of the truth of the matters set forth therein. 
However, it remains the responsibility of the judicial 
authority presiding at the trial to determine whether the 
evidence should in fact be admitted. The negotiators intended 
that evidentiary tests other than authentication (such as 
relevance or materiality) still must be satisfied in each case.

         Article 10--Publicly Available and Official Documents

    Paragraph 1 obliges each Party to furnish the other with 
copies of publicly available records of government agencies. 
The term ``government departments and agencies'' includes all 
executive, judicial, and legislative units of the federal, 
state, and local levels in both Parties.
    Paragraph 2 gives each Party the discretion to furnish to 
the other copies of materials in its possession, which are not 
publicly available, ``to the same extent and under the same 
conditions'' as such copies would be available to the 
appropriate law enforcement or judicial authorities in the 
Requested Party. This requirement is important because some 
United States statutes limit disclosure of government 
information to specific United States law enforcement 
authorities for specific purposes. The intent of the 
negotiators is to broaden statutorily limited access to include 
foreign authorities entitled to assistance under this 
Agreement. For example, the negotiators agreed that this 
Agreement is a ``convention'' under Title 26, United States 
Code, Section 6103 (k) (4), pursuant to which the United States 
may exchange tax information with treaty partners. Thus, the 
Internal Revenue Service may provide tax returns and return 
information to Hong Kong through this Agreement when, in a 
criminal investigation or prosecution, the Hong Kong authority 
on whose behalf the request is made can meet the same 
conditions required of United States law enforcement 
authorities under Title 26, United States Code, Sections 6103 
(h) and (i). Of course, if no law enforcement authorities are 
entitled under any condition to gain access to a particular 
non-public record, the treaty partner cannot expect to gain 
access to it under the Agreement.
    The discretionary nature of this provision was deemed 
necessary because government files of a Party may contain 
information available to investigative authorities in that 
country that justifiably could be deemed inappropriate for 
release to a foreign government. For example, assistance might 
be deemed inappropriate if the information requested identifies 
or endangers an informant, prejudices sources of information 
needed in future investigations, or reveals information that 
was given to the Requested Party in return for a promise not to 
divulge it.
    Paragraph 3 states that documents provided under this 
article may be certified in accordance with the procedures 
specified in the request, and if certified in this manner, the 
evidence shall be admissible in courts in the Requesting Party 
as proof of the truth of the matters set forth therein. (See 
Form B attached to the exchange of letters dated April 15, 1997 
and made part of this Agreement for use when the U.S. is the 
Requesting Party.) Thus, the Agreement establishes a procedure 
for authenticating official foreign records that is consistent 
with Fed. R. Evid. 902(3) and Fed. R. Civ. P 44.
    Paragraph 3, similar to Article 9(6), states that documents 
certified in accordance with this paragraph shall be 
``admissible,'' although the judicial authority presiding at 
the trial determines whether the evidence should in fact be 
admitted. Evidentiary tests other than authentication (such as 
relevance and materiality) must be established in each case.

               Article 11--Transfer of Persons in Custody

    In some criminal cases, a need arises for the testimony in 
one country of a witness in custody in another country. In some 
instances, countries are willing and able to ``lend'' witnesses 
to the United States provided the witnesses will be carefully 
guarded while in the United States and will be returned to the 
country at the conclusion of their testimony. On occasion, the 
United States Justice Department also has arranged for 
consenting federal inmates in the United States to be 
transported to foreign countries for testifying in criminal 
proceedings. \17\
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    \17\ For example, in September, 1986, the United States Justice 
Department and the United States Drug Enforcement Administration 
arranged for four federal prisoners to be transported to the United 
Kingdom to testify for the Crown in Regina v. Dye, Williamson, Ells, 
Davies, Murphy, and Millard, a major narcotics prosecution in ``the Old 
Bailey'' (Central Criminal Court) in London.
---------------------------------------------------------------------------
    Paragraph 1 provides an express legal basis for cooperation 
in these matters. It is based on Article 26 of the United 
States-Switzerland Mutual Legal Assistance Treaty, \18\ which 
in turn is based on Article 11 of the European Convention on 
Mutual Assistance in Criminal Matters.
---------------------------------------------------------------------------
    \18\ U.S.-Switzerland Mutual Legal Assistance Treaty, May 25, 1973, 
art. 26, 27 U.S.T. 2019, T.I.A.S. No. 8302, 1052 U.N.T.S. 61.
---------------------------------------------------------------------------
    There also have been situations in which a person in 
custody in a United States criminal case has demanded 
permission to travel to another country to be present at a 
deposition being taken there in connection with the criminal 
case. \19\ Paragraph 2 addresses this situation.
---------------------------------------------------------------------------
    \19\ See, e.g., United States v. King, 552 F.2d 833 (9th Cir. 1976) 
(defendants insisted on traveling to Japan with attorneys to be present 
at deposition of certain witnesses in prison).
---------------------------------------------------------------------------
    Paragraph 3 provides express authority for the receiving 
Party to maintain the person in custody throughout the person's 
stay there, unless the sending Party specifically authorizes 
release. This paragraph also requires the receiving Party to 
return the person in custody to the sending Party as soon as 
circumstances permit or as otherwise agreed upon by the Central 
Authorities. The initial transfer of a prisoner under this 
article requires the consent of the person involved and of both 
Central Authorities, but the provision does not require that 
the prisoner consent to be returned to the sending Party.
    Once the receiving Party agrees to assist the sending 
Party's investigation or proceeding pursuant to this article, 
it would be inappropriate for the receiving Party to hold the 
person transferred and require extradition proceedings before 
returning the person to the sending Party as agreed. Therefore, 
paragraph 3(c) specifies that extradition proceedings are not 
required before the status quo is restored by the return of the 
person transferred. Paragraph 3(d) states that the person is to 
receive credit for time served while in the custody of the 
receiving Party. This is consistent with United States practice 
in these matters.

                Article 12--Attendance of Other Persons

    This article provides that upon request, the Requested 
Party shall invite witnesses who are located in its territory 
to travel to the Requesting Party to appear before an 
appropriate authority there. It shall notify the Requesting 
Party of the invitee's response. An appearance in the 
Requesting Party under this article is not mandatory; the 
invitation may be refused by the prospective witness. The 
Requesting Party is expected to pay the expenses of such an 
appearance pursuant to Article 6. Such expenses usually will 
include the costs of transportation and room and board.

                        Article 13--Safe Conduct

    This article, like Article 27 of the United States-
Switzerland Treaty, provides that a person who is in the 
Requesting Party for testifying or for confrontation purposes 
pursuant to a request under Articles 11 or 12 shall be immune 
from criminal prosecution, punishment or any restriction on 
personal liberty, or service of process in a civil suit while 
present in the Requesting Party. This ``safe conduct'' is 
limited to events arising from acts or convictions that 
preceded the person's departure from the Requested Party. These 
assurances do not alter the Requesting Party's obligation, 
pursuant to Article 11 (3), to maintain a person in custody for 
those acts that resulted in the person's incarceration in the 
Requested Party.
    Paragraph 2 requires that the person must be advised of any 
limitations placed upon safe conduct in this context.
    Paragraph 3 states that for transferred persons not held in 
custody in the sending Party, any safe conduct provided under 
this article shall cease 15 days after the person has been 
notified that his presence is no longer required in the 
Requesting Party or whenever the person voluntarily reenters 
the Requesting Party after leaving it.
    Paragraph 4 provides that a person who consents to provide 
evidence pursuant to Article 11 or 12 shall not be subject to 
prosecution based on the person's testimony, except for 
perjury.
    Paragraph 5 states that the person cannot be required to 
provide assistance unrelated to the request.
    Paragraph 6 protects the person who refuses to consent to 
provide assistance under Article 11 or 12 from any penalty or 
coercive measure by the courts of either Party.

          Article 14--Location or Identity of Persons or Items

    This article provides for determining the whereabouts in 
the Requested Party of persons (such as witnesses, potential 
defendants, or experts) or items at the request of the 
Requesting Party. This is a standard provision contained in all 
United States mutual legal assistance treaties. The Agreement 
requires only that the Requested Party ``endeavor to 
ascertain'' the location or identity of the persons or items 
sought by the Requesting Party. The extent of such efforts will 
vary, of course, depending on the quality and extent of the 
information provided by the Requesting Party concerning the 
suspected location and last known location.
    The Parties intended that the obligation to locate persons 
or items be limited to persons or items that are or may be in 
the territory of the Requested Party. Thus, the United States 
is not obligated to attempt to locate persons or items that may 
be in third countries. In all cases, the Requesting Party is 
expected to supply all available information about the last 
known location of the persons or items sought.

                    Article 15--Service of Documents

    This article creates an obligation for the Requested Party 
to ``use its best efforts'' to effect the service of summonses, 
complaints, subpoenas, or other legal documents at the request 
of the Requesting Party.
    Paragraph 2 provides that when the documents to be served 
call for the response or appearance of a person in the 
Requesting Party, the documents should be transmitted by the 
Requesting Party within a reasonable time before the response 
or appearance date. Thus, if the United States were to ask Hong 
Kong to serve a subpoena issued pursuant to Title 28, United 
States Code, Section 1783 on a United States citizen located in 
Hong Kong, the request would have to be submitted well in 
advance of the hearing or trial at which the citizen is 
expected to appear. This is to allow sufficient time for 
service to be effected and for the person to make arrangements 
for the appearance.
    Paragraph 3 permits the Requested Party to effect service 
by mail or, upon request by the Requesting Party, by other 
methods not prohibited under the law of the Requested Party. It 
is expected that when the United States is the Requested Party, 
service under the Agreement will be made by registered mail (in 
the absence of any request by Hong Kong to follow a specified 
procedure for service), or by the United States Marshals 
Service in instances when personal service is requested.
    Paragraph 4 requires that proof of service be returned to 
the Requesting Party.
    Paragraph 5 protects persons who fail to comply with 
process served under the Agreement from any penalty or coercive 
measure under the law of the Requesting Party. The Hong Kong 
delegation insisted on this rule, which does not appear in most 
United States mutual assistance agreements. The United States 
delegation was concerned that this provision might have an 
adverse impact on U.S. law enforcement, because under Title 28, 
United States Code, Section 1783, U.S. courts issue subpoenas 
for service abroad on U.S. nationals and permanent residents 
located in another country. If the United States asked Hong 
Kong to serve such a subpoena on a U.S. national in Hong Kong, 
the subpoena would be rendered valueless if the United States 
court could not punish the recipient if he or she ignored it. 
For this reason, the second sentence of Paragraph 5 states that 
it does not apply if the United States is the Requesting Party 
and the person served is a national or permanent resident of 
the United States.

                     Article 16--Search and Seizure

    It is sometimes in the interests of justice for one country 
to ask another country to search for, secure, and deliver 
articles or objects needed as evidence or for other purposes. 
United States courts can and do execute such requests under 
Title 28, United States Code, Section 1782. \20\ This article 
creates a formal framework for handling such requests.
---------------------------------------------------------------------------
    \20\ See, e.g., Lancaster Factoring Company Limited v. Magnone, 90 
F.3d 38, 41 (2d Cir. 1996).
---------------------------------------------------------------------------
    Article 16 requires that a search and seizure request 
include ``information justifying such action under the law of 
the Requested Party.'' This means that a request to the United 
States from Hong Kong must be supported by a showing of 
probable cause for the search. A United States request to Hong 
Kong has to satisfy the corresponding evidentiary standard 
there. It is contemplated that such requests are to be carried 
out in strict accordance with the laws of the Requested Party.
    Paragraph 2 states that the Requested Party must provide 
information required by the Requesting Party concerning the 
circumstances of the search and seizure and the subsequent 
chain of custody of any item seized.
    Paragraph 3 is designed to ensure that records are kept of 
articles seized and/or delivered under the Agreement. This 
provision effectively requires that the Requested Party record 
detailed and reliable information regarding the condition of an 
article at the time of seizure and the chain of custody between 
seizure and delivery to the Requesting Party.
    This paragraph also provides that the certificates 
describing continuity of custody will be admissible without 
additional authentication at trial in the Requesting Party, 
thus relieving the Requesting Party of the burden, expense, and 
inconvenience of having to transport the Requested Party's law 
enforcement officers to the Requesting Party to provide 
testimony regarding authentication and chain of custody each 
time the Requesting Party uses evidence produced pursuant to 
this article. (See Form C attached to the exchange of letters 
dated April 15, 1997 and made part of this Agreement for use 
when the U.S. is the Requesting Party.) As in Articles 9(6) and 
10(3), the provision that the certificates are admissible 
without additional authentication at trial leaves the trier of 
fact free to bar use of the evidence itself, in spite of the 
certificate, if some other reason exists to do so aside from 
authenticity or chain of custody.
    Paragraph 4 requires the Requesting Party to observe any 
terms and conditions imposed by the Requested Party on the 
delivery of the seized property. Conditions may be imposed to 
protect the interests of third parties in the item to be 
transferred. This article is similar to provisions in many 
United States extradition treaties. \21\
---------------------------------------------------------------------------
    \21\ See, e.g., U.S.-United Kingdom Extradition Treaty, June 8, 
1972, Art. 13, 28 U.S.T. 227, T.I.A.S. No. 8468, 1049 U.N.T.S. 167; 
U.S.-Canada Extradition Treaty, Dec. 3, 1971, Art. 15, 27 U.S.T. 983, 
T.I.A.S. No. 8237; U.S.-Japan Extradition Treaty, Mar. 3, 1978, Art. 
13, 31 U.S.T. 892, T.I.A.S. No. 9625, 1203 U.N.T.S. 225; U.S.-Mexico 
Extradition Treaty, May 4, 1978, Art. 19, 31 U.S.T. 5059, T.I.A.S. No. 
9656.
---------------------------------------------------------------------------

                      Article 17--Return of Items

    This article provides that any documents, records, or items 
of evidence furnished under the Agreement must be returned to 
the Requested Party as soon as possible upon request by the 
Central Authority of the Requested Party. It is anticipated 
that unless original documents or articles of significant 
intrinsic value are involved, the Requested Party usually will 
not request return of the items, but this is a matter better 
left to development of practice.

                Article 18--Confiscation and Forfeiture

    A major goal of the Agreement is to enhance the efforts of 
both Parties in combatting narcotics trafficking. One 
significant strategy in this effort under U.S. practice is 
action by United States authorities to seize and confiscate 
money, property, and other proceeds of drug trafficking.
    This article replaces the U.S.-Hong Kong Agreement 
Concerning the Confiscation and Forfeiture of the Proceeds and 
Instrumentalities of Drug Trafficking, signed at Hong Kong 
November 23, 1990, which expired when Hong Kong reverted to the 
sovereignty of the People's Republic of China. \22\ It also 
expands the scope of assistance available in forfeiture-related 
matters. It is similar to Article 16 of the United States-
Philippines Mutual Legal Assistance Treaty and Article 15 of 
the United States-Thailand Mutual Legal Assistance Treaty. 
Paragraph 1 requires the Requested Party, upon request, to 
endeavor to ascertain and to notify the Requesting Party of the 
existence in the former's territory of any proceeds or 
instrumentalities of offenses against the laws of the 
Requesting Party that may be forfeitable or otherwise subject 
to seizure. The terms ``proceeds or instrumentalities'' are 
intended to include things such as money, vessels, or other 
valuables either used in the crime or purchased or obtained as 
a result of the crime.
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    \22\ At present, the HKSAR provides assistance to the U.S. in 
matters related to freezing and forfeiting drug proceeds pursuant to a 
domestic law known as the Drug Trafficking (Recovery of Proceeds) 
Ordinance.
---------------------------------------------------------------------------
    Upon receipt of notice under this article, the Central 
Authority of the Party in which the proceeds or 
instrumentalities are located may take whatever action is 
appropriate under its law. For instance, if the assets in 
question are located in the United States and were obtained as 
a result of a fraud in Hong Kong, they may be seized in aid of 
a prosecution under Title 18, United States Code, Section 2314, 
or may be subject to a temporary restraining order in 
anticipation of a civil action for the return of the assets to 
the lawful owner.
    If the assets are the proceeds of drug trafficking, Title 
18, United States Code, Section 981(a)(1)(B) would allow for 
forfeiture to the United States of property which represents 
the proceeds of serious foreign drug offenses in Hong Kong. The 
HKSAR, like Switzerland and Canada, has similar laws that 
reflect a growing trend among countries toward enacting 
legislation of this kind in the battle against narcotics 
trafficking. \23\ The United States delegation expects that 
Article 18 will permit more effective use of U.S. forfeiture 
statutes.
---------------------------------------------------------------------------
    \23\ For example, Article 3 of the United Nations Convention 
Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 
calls for the signatory nations to enact broad legislation to forfeit 
illicit drug proceeds and to assist one another in such matters. United 
Nations Convention Against Illicit Traffic in Narcotic Drugs and 
Psychotropic Substances, with annex and final act. Done at Vienna 
December 20, 1988; entered into force November 11, 1990.
---------------------------------------------------------------------------
    Paragraph 2 provides that the Requested Party shall take 
measures to the extent permitted by its laws to immobilize the 
assets temporarily, pending a final court determination in the 
Requesting Party. Thus, if the law of the Requested Party 
enables it to seize assets in aid of a proceeding in the 
Requesting Party or to enforce a judgment of forfeiture levied 
in the Requesting Party, the Agreement provides that the 
Requested Party shall do so. The language of the article is 
carefully selected, however, so as not to require either Party 
to take any action that exceeds its internal legal authority. 
It does not mandate institution of forfeiture proceedings or 
initiation of temporary immobilization in either Party against 
property identified by the other if the relevant prosecution 
authorities do not deem it proper to do so.
    Paragraph 3 states that ``appropriate'' means are to be 
employed in providing assistance in the confiscation or 
forfeiture of assets. Such means may include the enforcement of 
an order issued by a court in the Requesting Party or the 
initiation of proceedings in the Requested Party. Paragraph 4 
obligates the Requested Party to notify the Requesting Party of 
any action taken pursuant to this article.
    United States law permits the government to transfer a 
share of certain forfeited property to other countries that 
participate directly or indirectly in the seizure or forfeiture 
of the property. Under regulations promulgated by the Attorney 
General, the amount transferred generally reflects the 
contribution of the foreign government in the law enforcement 
activity that led to the seizure and forfeiture of the 
property. The law requires that the transfer be authorized by 
an international agreement between the United States and the 
foreign country and be approved by the Secretary of State. 
Paragraph 5 is consistent with this framework and will enable a 
Party having custody over proceeds or instrumentalities of 
offenses to transfer forfeited assets, or the proceeds of the 
sale of such assets, to the other Party, at the former's 
discretion and to the extent permitted by its laws.

              Article 19--Certification and Authentication

    This article provides for the certification or 
authentication by consular or diplomatic officers, upon request 
by the Requesting Party, of documents, records or other 
evidence transmitted to the Requesting Party pursuant to this 
Agreement.

                      Article 20--Other Assistance

    This article establishes that assistance provided for under 
this Agreement shall not preclude the provision of assistance 
between the Parties that is available pursuant to any other 
applicable agreements. Article 20 also states that the 
Agreement shall not be deemed to prevent recourse to any 
assistance available under the internal laws of either Party, 
or pursuant to other arrangements or practices between them. 
Thus, the Agreement leaves undisturbed provisions of United 
States and Hong Kong law that deal with letters rogatory and 
does not alter any pre-existing agreements concerning 
investigative assistance.

                        Article 21--Consultation

    Experience has shown that as the parties to a treaty of 
this kind work together over the years, they become aware of 
practical ways to make the treaty more effective and their own 
efforts more productive. This article calls upon the Parties to 
share those ideas with one another and encourages them to agree 
on implementation measures. Practical measures of this kind 
might include methods of keeping each other informed of the 
progress of matters in which assistance is provided pursuant to 
the Agreement. Another example might include use of the 
Agreement to obtain evidence that otherwise might be sought via 
methods less acceptable to the Requested Party. Very similar 
provisions are contained in recent United States mutual legal 
assistance treaties. \24\
---------------------------------------------------------------------------
    \24\ See, e.g., U.S.-Philippines Mutual Legal Assistance Treaty, 
Nov. 13, 1994, Art. 18; U.S.-Canada Mutual Legal Assistance Treaty, 
Mar. 18, 1985, Art. 18; U.S.-Cayman Islands Mutual Legal Assistance 
Treaty, July 3, 1986, Art. 18; U.S.-Argentina Mutual Legal Assistance 
Treaty, Dec. 4, 1990, Art. 18.
---------------------------------------------------------------------------
    It is anticipated that the Central Authorities will conduct 
regular consultations pursuant to this article.

                   Article 22--Resolution of Disputes

    This article provides that any dispute as to the 
interpretation, application, or implementation of the Agreement 
shall be handled through diplomatic channels if the Central 
Authorities fail to resolve the matter themselves.

              Article 23--Entry Into Force and Termination

    This article contains standard provisions on the procedures 
for the Agreement's application and ratification, and the 
exchange of instruments of ratification.
    Paragraph 1 provides that the Agreement shall enter into 
force thirty days after written notification that the 
respective requirements of the Parties for its entry into force 
have been satisfied.
    Paragraph 2 states that the Agreement shall apply to any 
request presented after it enters into force, even if the 
relevant acts or omissions occurred before the date on which 
the Agreement enters into force. Provisions of this kind are 
common in law enforcement agreements; similar provisions are 
found in most United States mutual legal assistance treaties.
    Paragraph 3 contains standard treaty language setting forth 
the procedure for terminating the Agreement. Termination shall 
take effect three months after the date of the receipt of 
written notification. Requests received prior to receipt of the 
termination notice will nevertheless be processed as if the 
Agreement were still in force.

 Technical Analysis of the Treaty Between the United States of America 
       and Israel on Mutual Legal Assistance in Criminal Matters

    On January 26, 1998, the United States signed a treaty with 
Israel on Mutual Legal Assistance in Criminal Matters (``the 
Treaty''). In recent years, the United States has signed 
similar treaties with a number of countries as part of a highly 
successful effort to modernize the legal tools available to law 
enforcement authorities in need of foreign evidence for use in 
criminal cases.
    The Treaty is expected to be a valuable weapon for the 
United States in its efforts to combat organized crime, 
transnational terrorism, and international drug trafficking.
    It is anticipated that the Treaty will be implemented in 
the United States pursuant to the procedural framework provided 
by Title 28, United States Code, Section 1782. Israel has its 
own mutual legal assistance laws in place for implementing the 
Treaty. \1\
---------------------------------------------------------------------------
    \1\ Israel currently provides mutual legal assistance pursuant to 
the Legal Assistance to Foreign States (Consolidated Version) Law, 
5737-1977 (hereinafter ``Israel Mutual Assistance Law''). That law is 
in the process of revision, and we have been assured that the revised 
law will not adversely affect Israel's ability to implement the treaty.
---------------------------------------------------------------------------
    The following technical analysis of the Treaty was prepared 
by the Office of International Affairs, United States 
Department of Justice, and the Office of the Legal Adviser, 
United States Department of State, based upon the negotiating 
notes. The technical analysis includes a discussion of U.S. law 
and relevant practice as of the date of its preparation, which 
are, of course, subject to change. Foreign law discussions 
reflect the current state of that law, to the best of the 
drafters' knowledge.

                     Article 1--Scope of Assistance

    Paragraph 1 provides for assistance in all matters 
involving the investigation, prosecution, and prevention of 
offenses, and in proceedings relating to criminal matters.
    The negotiators specifically agreed that the term 
``investigations'' includes grand jury proceedings in the 
United States and similar pre-charge proceedings in Israel, and 
other legal measures taken prior to the filing of formal 
charges in either State. \2\ The term ``proceedings'' was 
intended to cover the full range of proceedings in a criminal 
case, including such matters as bail and sentencing hearings. 
\3\ It was also agreed that since the phrase ``proceedings 
related to criminal matters'' is broader than the 
investigation, prosecution or sentencing process itself, 
proceedings covered by the Treaty need not be strictly criminal 
in nature. For example, proceedings to forfeit to the 
Government the proceeds of illegal drug trafficking may be 
civil in nature; \4\ such proceedings are covered by the 
Treaty.
---------------------------------------------------------------------------
    \2\ The requirement that assistance be provided under the Treaty at 
the pre-indictment stage is critical to the U.S., as our investigators 
and prosecutors often need to obtain evidence from foreign countries in 
order to determine whether or not to file criminal charges. This 
obligation is a reciprocal one; the U.S. must assist Israel under the 
Treaty in connection with investigations prior to charges being filed 
in Israel. Prior to the 1996 amendments to Title 28, United States 
Code, Section 1782, some U.S. courts had interpreted Section 1782, to 
require that assistance be provided in criminal matters only if formal 
charges have already been filed abroad, or are ``imminent,'' or ``very 
likely.'' McCarthy, ``A Proposed Uniform Standard for U.S. Courts in 
Granting Requests for International Judicial Assistance,'' 15 Fordham 
Int'l Law J. 772 (1991). The 1996 amendment effectively overruled these 
decisions, however, by amending subsec. (a) to state ``including 
criminal investigation conducted before formal accusation.'' In any 
event, this Treaty was intentionally written to cover criminal 
investigations that have just begun as well as those that are nearly 
completed; it draws no distinction between cases in which charges are 
already pending, ``imminent,'' ``very likely,'' or ``very likely very 
soon.'' Thus, U.S. courts should execute requests under the Treaty 
without examining such factors.
    \3\ One United States court has interpreted Title 28, United States 
Code, Section 1782, as permitting the execution of a request for 
assistance from a foreign country only if the evidence sought is for 
use in proceedings before an adjudicatory ``tribunal'' in the foreign 
country. In Re Letters Rogatory Issued by the Director of Inspection of 
the Gov't of India, 385 F.2d 1017 (2d Cir. 1967); Fonseca v. 
Blumenthal, 620 F.2d 322 (2d Cir. 1980). This interpretation poses an 
unnecessary obstacle to the execution of requests concerning matters 
which are at the investigatory stage, or which are customarily handled 
by administrative officials in the Requesting State. Since this 
paragraph of the Treaty specifically permits requests to be made in 
connection with matters not within the jurisdiction of an adjudicatory 
``tribunal'' in the Requesting State, this paragraph accords the courts 
broader authority to execute requests than does Title 28, United States 
Code, Section 1782, as interpreted in the India and Fonseca cases.
    \4\ See 21 U.S.C. Section 881; 18 U.S.C. 1964.
---------------------------------------------------------------------------
    Paragraph 2 lists the major types of assistance 
specifically considered by the treaty negotiators. Most of the 
items listed in the paragraph are described in detail in 
subsequent articles. The list is not intended to be exhaustive, 
a fact that is signaled by the word ``include'' in the opening 
clause of the paragraph and reinforced by the final 
subparagraph.
    Many law enforcement treaties, especially in the area of 
extradition, condition cooperation upon a showing of ``dual 
criminality'', i.e., proof that the facts underlying the 
offense charged in the Requesting State would also constitute 
an offense had they occurred in the Requested State. Paragraph 
3 of this Article, however, makes it clear that there is no 
general requirement of dual criminality under this treaty. 
Thus, assistance may be provided even when the criminal matter 
under investigation in the Requesting State would not be a 
crime in the Requested State ``...except where otherwise 
provided by this treaty,'' a phrase which refers to Article 
3(1), under which the Requested State may, in its discretion, 
require dual criminality for a request under Article 14 
(involving searches and seizures) or Article 16 (involving 
asset forfeiture matters). Article 1(3) is important because 
United States and Israel criminal law differ significantly, and 
a general dual criminality rule would make assistance 
unavailable in many significant areas. This type of limited 
dual criminality provision is found in other U.S. mutual legal 
assistance treaties. \5\ During the negotiations, the United 
States delegation received assurances from the Israel 
delegation that assistance would be available under the Treaty 
to the United States investigations of essentially all criminal 
matters, including drug trafficking, terrorism, organized crime 
and racketeering, money laundering, fraud, Export Control Act 
violations, child exploitation or obscenity, antitrust 
offenses, and crimes against the environment or endangered 
species.
---------------------------------------------------------------------------
    \5\ See e.g., U.S.-Argentina Treaty on Mutual Legal Assistance in 
Criminal Matters, Dec. 4, 1990, art. 1(3); U.S.-Philippines Treaty on 
Mutual Legal Assistance in Criminal Matters, Nov. 13, 1994, art. 1(3).
---------------------------------------------------------------------------
    The U.S. and Israeli delegations that negotiated the Treaty 
developed an exchange of Notes addressing the relationship 
between this Treaty and the Convention between the United 
States and Israel with Respect to Taxes on Income, signed on 
November 20, 1975, with Protocols signed May 30, 1980 and 
January 26, 1993, which entered into force December 30, 1994 
(the ``Tax Convention''). The delegations agreed that the 
Treaty will cover criminal tax cases, but, at the insistence of 
Israeli authorities, it was also agreed that the assistance 
would not be requested under the Treaty for any matter that 
ordinarily would fall under the Tax Convention unless (1) the 
request is for a form of assistance not included within the 
framework of the Tax Convention or (2) the case concerned also 
includes ``serious non-fiscal offenses'' as well as tax 
offenses. In any event, a request for assistance under the 
Treaty with regard to a fiscal offense should specify whether 
assistance under the Tax Conven-tion has been previously 
requested or granted. The Parties also expressed their 
understanding that requests for assistance in the form of bank 
records with respect to a fiscal offense will be made only in 
connection with serious offenses involving willful, fraudulent 
conduct. Serious offenses would include, for example, cases 
involving substantial sums of money or involving a pattern of 
criminal conduct. An exchange of notes detailing this under-
standing was signed on January 26, 1998, and accompanies the 
Treaty.
    Paragraph 4 contains a standard provision in United States 
mutual legal assistance treaties \6\ that states that the 
Treaty is intended solely for government-to-government mutual 
legal assistance. The Treaty is not intended to provide to 
private persons a means of evidence gathering, or to extend 
generally to civil matters. Private litigants in the United 
States may continue to obtain evidence from Israel by letters 
rogatory, an avenue of international assistance that the Treaty 
leaves undisturbed. Similarly, the paragraph provides that the 
Treaty is not intended to create any right in a private person 
to obtain, suppress or exclude evidence provided pursuant to 
the Treaty, or to impede the execution of a request.
---------------------------------------------------------------------------
    \6\ See United States v. Johnpoll, 739 F.2d 702 (2d Cir. 1984), 
cert. denied 469 U.S. 1075 (1984).
---------------------------------------------------------------------------

                     Article 2--Central Authorities

    This article requires that each Party establish a ``Central 
Authority'' to make and receive treaty requests. The Central 
Authority of the United States would make all requests to 
Israel on behalf of federal agencies, state agencies, and local 
law enforcement authorities in the United States. The Israeli 
Central Authority will make all requests emanating from 
officials in Israel.
    The Central Authority for the Requesting State will 
exercise discretion as to the form and content of requests, and 
also to the number and priority of requests. The Central 
Authority of the Requested State is also responsible for 
receiving each request, transmitting it to the appropriate 
federal or state agency, court, or other authority for 
execution, and ensuring that a timely response is made.
    Paragraph 2 provides that the Attorney General or a person 
designated by the Attorney General will be the Central 
Authority for the United States. The Attorney General has 
delegated the authority to handle the duties of Central 
Authority under mutual assistance treaties to the Assistant 
Attorney General in charge of the Criminal Division. \7\ 
Paragraph 2 also states that the Minister of Justice of Israel 
or the person designated by the Minister of Justice will serve 
as the Central Authority for Israel.
---------------------------------------------------------------------------
    \7\ 28 C.F.R. Sec.  0.64-1. The Assistant Attorney General for the 
Criminal Division has in turn delegated this authority to the Deputy 
Assistant Attorneys General and the Director of the Criminal Division's 
Office of International Affairs, in accordance with the regulation. 
Directive No. 81, 45 Fed. Reg. 79,758 (1980), as corrected at 48 Fed. 
Reg. 54,595 (1983). That delegation was subsequently extended to the 
Deputy Directors of the Office of International Affairs. 59 Fed. Reg. 
42,160 (1994).
---------------------------------------------------------------------------
    Paragraph 3 states that the Central Authorities shall 
communicate directly with one another for the purposes of the 
Treaty. It is anticipated that such communication will be 
accomplished by telephone, telefax, or INTERPOL channels, or 
any other means, at the option of the Central Authorities 
themselves.

                  Article 3--Limitations on Assistance

    This article specifies the limited classes of cases in 
which assistance may be denied under the Treaty.
    Paragraph (1)(a) permits the Central Authority of the 
Requested State to deny a request if execution of the request 
would prejudice its sovereignty, security, important public 
policy, ordre public, or other essential interests. All United 
States mutual legal assistance treaties contain provisions 
allowing the Requested State to decline to execute a request if 
execution would prejudice its essential interests.
    The delegations agreed that the word ``security'' would 
include cases in which assistance might involve disclosure of 
information that is classified for national security reasons. 
It is anticipated that the United States Department of Justice, 
in its role as Central Authority for the United States, would 
work closely with the Department of State and other government 
agencies to determine whether to execute a request that might 
fall in this category.
    The delegations also agreed that the phrase ``essential 
interests'' was intended to narrowly limit the class of cases 
in which assistance may be denied. It would not be enough that 
the Requesting State's case is one that would be inconsistent 
with any public policy had it been brought in the Requested 
State. Rather, the Requested State must be convinced that 
execution of the request would seriously conflict with an 
important public policy, which the delegations agreed could 
include foreign policy considerations. \8\ Another example 
might be a request involving prosecution by the Requesting 
State of conduct which occurred in the Requested State and is 
constitutionally protected in that State.
---------------------------------------------------------------------------
    \8\ The Justice and State Departments will work together in 
reviewing requests to Israel and considering Israeli requests that 
affect important public policy interests relating to foreign policy 
considerations.
---------------------------------------------------------------------------
    However, it was agreed that ``essential interests'' could 
include interests unrelated to national military or political 
security, and be invoked if the execution of a request would 
violate essential United States interests related to the 
fundamental purposes of the Treaty. For example, one 
fundamental purpose of the Treaty is to enhance law enforcement 
cooperation, and attaining that purpose would be hampered if 
sensitive law enforcement information available under the 
Treaty were to fall into the wrong hands. Therefore, the United 
States Central Authority would invoke paragraph 1(a) to decline 
to provide sensitive or confidential drug related information 
pursuant to a request under this Treaty whenever it determines, 
after appropriate consultation with law enforcement, 
intelligence, and foreign policy agencies, that a senior 
foreign government official who
    will have access to the information is engaged in or 
facilitates the production or distribution of illegal drugs and 
is using the request to the prejudice of a U.S. investigation 
or prosecution. \9\
---------------------------------------------------------------------------
    \9\ This is consistent with the Senate resolution of advice and 
consent to ratification, e.g., of the mutual legal assistance treaties 
with Mexico, Canada, Belgium, Thailand, the Bahamas, and the United 
Kingdom Concerning the Cayman Islands. Cong. Rec. 13884, (1989) (treaty 
citations omitted). See also Staff of Senate Comm. on Foreign 
Relations, 100th Cong., 2nd Sess., Mutual Legal Assistance Treaty 
Concerning the Cayman Islands 67 (1988) (testimony of Mark M. Richard, 
Deputy Assistant Attorney General, Criminal Division, United States 
Department of Justice).
---------------------------------------------------------------------------
    Paragraph 1(b) permits the Requested State to deny the 
request if it relates to political offense or an offense under 
military law which would not be an offense under ordinary 
criminal law. It is anticipated that the Central Authorities 
will employ jurisprudence similar to that used in the 
extradition treaties for determining what is a ``political 
offense.'' Similar provisions appear in many other U.S. mutual 
legal assistance treaties.
    Paragraph 1(c) permits the denial of a request if it was 
not made in conformity with the Treaty.
    Paragraph 2 is similar to Article 3(2) of the U.S.-Switzer-
land Mutual Legal Assistance Treaty, \10\ and obliges the 
Requested State to consider imposing appropriate conditions on 
its assistance in lieu of denying a request outright pursuant 
to the first paragraph of the article. For example, a 
Contracting Party might request information that could be used 
either in a routine criminal case (which would be within the 
scope of the Treaty) or in a politically motivated prosecution 
(which would be subject to refusal). This paragraph would 
permit the Requested State to provide the information on the 
condition that it be used only in the routine criminal case. 
Naturally, the Requested State would notify the Requesting 
State of any proposed conditions before actually delivering the 
evidence in question, thereby according the Requesting State an 
opportunity to indicate whether it is willing to accept the 
evidence subject to the conditions. If the Requesting State 
does accept the evidence subject to the conditions, it must 
honor the conditions.
---------------------------------------------------------------------------
    \10\ U.S.-Switzerland Mutual Legal Assistance Treaty, July 7, 1989, 
art. 26, 27 U.S.T. No. 8302, 1052 U.N.T.S. 61.
---------------------------------------------------------------------------
    Paragraph 3 effectively requires that the Central Authority 
of the Requested State promptly notify the Central Authority of 
the Requesting State of the basis for any denial of assistance. 
This ensures that, when a request is only partly executed, the 
Requested State will provide some explanation for not providing 
all of the information or evidence sought. This should avoid 
misunderstandings, and enable the Requesting State to better 
prepare its requests in the future.

                Article 4--Form and Contents of Requests

    Paragraph 1 requires that requests be in writing, except 
that the Central Authority of the Requested State may, in its 
discretion, accept a request in another form in ``urgent 
situations.'' A request in another form must be confirmed in 
writing within such time period as the Requested State 
determines. This paragraph also requires that requests be 
accompanied by a translation in the language of the Requested 
State unless otherwise agreed.
    Paragraph 2 lists the kinds of information deemed crucial 
to the efficient operation of the Treaty which must be included 
in each request. Paragraph 3 outlines kinds of information that 
are important but not always crucial, and should be provided 
``to the extent necessary and possible.'' In keeping with the 
intention of the Parties that requests be as simple and 
straightforward as possible, there is no requirement under the 
Treaty that a request be legalized or certified in any 
particular manner.
    Paragraph 4 states that any exhibits or other attachments 
to a request shall be translated into the language of the 
Requested State unless the Central Authorities agree other-
wise.

                    Article 5--Execution of Requests

    Paragraph 1 requires each Central Authority promptly to 
execute requests or, when appropriate, transmit it to the 
authority having jurisdiction to do so. The negotiators 
intended that the Central Authority, upon receiving a request, 
will first review the request, then promptly notify the Central 
Authority of the Requesting State if the request does not 
appear to comply with the Treaty's terms. If the request does 
satisfy the Treaty's requirements and the assistance sought can 
be provided by the Central Authority itself, the request will 
be fulfilled immediately. If the request meets the Treaty's 
requirements but its execution requires action by some other 
entity in the Requested State, the Central Authority will 
promptly transmit the request to the correct entity for 
execution.
    When the United States is the Requested State, it is 
anticipated that the Central Authority will transmit most 
requests to federal investigators, prosecutors, or judicial 
officials for execution if the Central Authority deems it 
appropriate to do so.
    Paragraph 1 further authorizes and requires the federal, 
state, or local agency or authority selected by the Central 
Authority to do everything within its power and take whatever 
action would be necessary to execute the request. This 
provision is not intended or understood to authorize the use of 
the grand jury in the United States for the collection of 
evidence pursuant to a request from Israel. Rather, it is 
anticipated that when a request from Israel requires compulsory 
process for execution, the United States Department of Justice 
would ask a federal court to issue the necessary process under 
Title 28, United States Code, Section 1782, and the provisions 
of the Treaty. \11\
---------------------------------------------------------------------------
    \11\ This paragraph of the Treaty specifically authorizes United 
States courts to use all of their powers to issue subpoenas and other 
process to satisfy a request under the Treaty.
---------------------------------------------------------------------------
    The third sentence in Article 5(1) reads ``[t]he Courts of 
the Requested State shall have authority to issue subpoenas, 
search warrants, or other orders necessary to execute the 
request; in the case of Israel, this authority shall be derived 
from its domestic law.'' This language reflects an 
understanding that the Parties intend to provide each other 
with every available form of assistance from judicial and 
executive branches of government in aid of the execution of 
mutual assistance requests. It also reflects the fact that 
Israel, where its domestic legislation does not so provide, 
will enact legislation to ensure that its domestic legal 
framework for executing requests for legal assistance is 
consistent with the terms of this provision.
    Paragraph 2 states that the Central Authority of the 
Requested State shall make all necessary arrangements for 
representation of the Requesting State in any proceedings in 
the Requested State arising out of the request for assistance. 
Thus, it is understood that if execution of the request entails 
action by a judicial or administrative agency, the Central 
Authority of the Requested State shall arrange for the 
presentation of the request to that court or agency at no cost 
to the Requesting State. Since the cost of retaining counsel 
abroad to present and process letters rogatory is sometimes 
quite high, this provision for reciprocal legal representation 
in Paragraph 2 is a significant advance in international legal 
cooperation. It is also understood that should the Requesting 
State choose to hire private counsel for a particular request, 
it is free to do so at its own expense.
    Paragraph 3 is inspired by Article 5(5) of the U.S.-
Jamaican Mutual Legal Assistance Treaty \12\, and provides, 
that ``[r]equests shall be executed as empowered by this Treaty 
or by applicable law.'' Thus, the method of executing a request 
for assistance under the Treaty must be in accordance with the 
Requested State's internal laws absent specific contrary 
procedures in the Treaty itself. Neither State is expected to 
utilize a procedure for executing a treaty request which would 
be prohibited under its internal laws. For the United States, 
the Treaty is intended to be self-executing; no new or 
additional legislation will be needed to carry out the 
obligations undertaken.
---------------------------------------------------------------------------
    \12\ U.S.-Jamaica Mutual Legal Assistance Treaty, July 7, 1989, 
art. 5(5).
---------------------------------------------------------------------------
    The same paragraph requires that procedures specified in 
the request shall be followed in the execution of the request 
except to the extent that those procedures cannot lawfully be 
followed in the Requested State. This provision is necessary 
for two reasons.
    First, there are significant differences between the 
procedures which must be followed by United States and Israeli 
authorities in collecting evidence in order to assure the 
admissibility of that evidence at trial. For instance, United 
States law permits documentary evidence taken abroad to be 
admitted in evidence if the evidence is duly certified and the 
defendant has been given fair opportunity to test its 
authenticity. \13\ Israeli law currently contains no similar 
provision. Thus, documents assembled in Israel in strict 
conformity with Israeli procedures on evidence might not be 
admissible in United States courts. Similarly, United States 
courts utilize procedural techniques such as videotape 
depositions to enhance the reliability of evidence taken 
abroad, and some of these techniques, while not forbidden, are 
generally not used in Israel.
---------------------------------------------------------------------------
    \13\ Title 18, United States Code, Section 3505.
---------------------------------------------------------------------------
    Second, the evidence in question could be needed for 
subjection to forensic examination, and sometimes the 
procedures which must be followed to enhance the scientific 
accuracy of such tests do not coincide with those utilized in 
assembling evidence for admission into evidence at trial. The 
value of such forensic examinations could be significantly 
lessened--and the Requesting State's investigation could be 
retarded--if the Requested State were to insist unnecessarily 
on handling the evidence in a manner usually reserved for 
evidence to be presented to its own courts.
    Both delegations agreed that the Treaty's primary goal of 
enhancing law enforcement in the Requesting State could be 
frustrated if the Requested State were to insist on producing 
evidence in a manner which renders the evidence inadmissible or 
less persuasive in the Requesting State. For this reason, 
Paragraph 3 requires the Requested State to follow the 
procedure outlined in the request to the extent that it can, 
even if the procedure is not that usually employed in its own 
proceedings. However, if the procedure called for in the 
request is unlawful in the Requested State (as opposed to 
simply unfamiliar there), the appropriate procedure under the 
law applicable for investigations or proceedings in the 
Requested State will be utilized.
    Paragraph 4 states that a request for assistance need not 
be executed immediately when the Central Authority of the 
Requested State determines that execution would interfere with 
an ongoing criminal investigation, prosecution, or proceeding 
in the Requested State. The Central Authority of the Requested 
State may, in its discretion, take such preliminary action as 
deemed advisable to obtain or preserve evidence that might 
otherwise be lost before the conclusion of the criminal 
investigation, prosecution, or proceeding in that State. The 
paragraph also allows the Requested State to provide the 
information sought to the Requesting State subject to 
conditions needed to avoid interference with the Requested 
State's proceedings.
    It is anticipated that some United States requests for 
assistance may contain information which under our law must be 
kept confidential. For example, it may be necessary to set out 
information that is ordinarily protected by Rule 6(e), Federal 
Rules of Criminal Procedure, in the course of an explanation of 
``the subject matter and nature of the investigation, 
prosecution, or proceeding'' as required by Article 4(2)(b). 
Therefore, Paragraph 5 of Article 5 enables the Requesting 
State to call upon the Requested State to keep the information 
in the request confidential. \14\ If the Requested State cannot 
execute the request without disclosing the information in 
question (as might be the case if execution requires a public 
judicial proceeding in the Requested State), or if for some 
other reason this confidentiality cannot be assured, the Treaty 
obliges the Requested State to so indicate, thereby giving the 
Requesting State an opportunity to withdraw the request rather 
than risk jeopardizing an investigation or proceeding by public 
disclosure of the information.
---------------------------------------------------------------------------
    \14\ This provision is similar to language in other United States 
mutual legal assistance treaties. See e.g., U.S.-Mexico Mutual Legal 
Assistance Treaty, Dec. 9, 1987, art. 4(5); U.S.-Canada Mutual Legal 
Assistance Treaty, Mar. 18, 1985; art. 6(5), U.S.-Italy Mutual Legal 
Assistance Treaty, Nov. 9, 1982, art. 8(2); US.-Philippines Mutual 
Legal Assistance Treaty, supra note 5, art. 5(5).
---------------------------------------------------------------------------
    Paragraph 6 states that the Central Authority of the 
Requested State shall respond to reasonable inquiries by the 
Requesting State concerning progress of its request. This is to 
encourage open communication between the Central Authorities in 
monitoring the status of specific requests.
    Paragraph 7 requires that the Central Authority of the 
Requested State promptly notify the Central Authority of the 
Requesting State of the outcome of the execution of a request. 
If the assistance sought is not provided, the Central Authority 
of the Requested State must also explain the basis for the 
outcome to the Central Authority of the Requesting State. For 
example, if the evidence sought could not be located, the 
Central Authority of the Requested State would report that fact 
to the Central Authority of the Requesting State.

                            Article 6--Costs

    This article reflects the increasingly accepted 
international rule that each State shall bear the expenses 
incurred within its territory in executing a legal assistance 
treaty request. This is consistent with similar provisions in 
other United States mutual legal assistance treaties. \15\ 
Article 6 does, however, oblige the Requesting State to pay 
fees of expert witnesses, translation, interpretation, and 
transcription, and the allowances and expenses related to 
travel of persons pursuant to Articles 10 and 11.
---------------------------------------------------------------------------
    \15\ See, e.g. U.S.-Canada Mutual Legal Assistance Treaty, supra 
note 14, art. 8; U.S.-Philippines Mutual Legal Assistance Treaty, supra 
note 5, art. 6.
---------------------------------------------------------------------------
    Paragraph 2 states that if expenses of an extraordinary 
nature are or will be required to execute the request, the 
Central authorities of the Parties shall consult to determine 
the manner in which the expenses shall be borne. A major case 
in the Requesting State could involve substantial (and costly) 
investigative efforts in the Requested State, and the law 
enforcement authorities of the two Parties have finite 
resources.
    Paragraph 3 states that in cases of seizure, immobilization 
or forfeiture of assets or restraining orders in which a court 
of the Requested State, pursuant to its law, issues an order to 
compensate an injured party or requires furnishing of a bond or 
other security, the Central Authorities of the Parties shall 
consult to determine the manner in which such costs shall be 
borne.

                     Article 7--Limitations on Use

    Paragraph 1 states that the Requested State shall not use 
evidence or information provided under the Treaty for purposes 
other than those stated in the request without prior consent of 
the Central Authority of the Requested State. It will be 
recalled that Article 4(2)(d) states that the Requesting State 
must specify the purpose for which the information or evidence 
sought under the Treaty is needed.
    It is not anticipated that the Central Authority of the 
Requested State will routinely request use limitations under 
paragraph 1. Rather, it is expected that such limitations will 
be requested sparingly, only when there is good reason to 
restrict the utilization of the evidence.
    Paragraph 2 states that the Central Authority of the 
Requested State may request that the information or evidence it 
provides to the Requesting State be kept confidential or be 
used only subject to terms and conditions it may specify. Under 
most United States mutual legal assistance treaties, conditions 
of confidentiality are imposed only when necessary, and are 
tailored to fit the circumstances of each particular case. For 
instance, the Requested State may wish to cooperate with the 
investigation in the Requesting State but choose to limit 
access to information which might endanger the safety of an 
informant, or unduly prejudice the interests of persons not 
connected in any way with the matter being investigated in the 
Requesting State. Paragraph 2 requires that if the Requesting 
State accepts the information or evidence subject to such 
conditions, it shall comply with the conditions to the fullest 
extent possible. If assistance is provided with a condition 
under this paragraph, the U.S. could deny public disclosure 
under the Freedom of Information Act.
    If the United States Government were to receive evidence 
under the Treaty that seems to be exculpatory to the defendant 
in another case, the United States might be obliged to share 
the evidence with the defendant in the second case. Brady v. 
Maryland, 373 U.S. 83 (1963). Therefore, Paragraph 3 states 
that nothing in this Article shall preclude the use or 
disclosure of information in a criminal prosecution to the 
extent that (in the case of a request from the United States) 
it is obliged to do so under its Constitution or (in the case 
of a request from Israel) it is obligated to do so under the 
fundamental rights provided under the law of Israel. Any such 
proposed disclosure shall be notified by the Requesting State 
to the Requested State in advance.
    Paragraph 4 states that once information or evidence 
obtained under the Treaty has been revealed to the public in a 
public judicial or administrative proceeding related to a 
request, the Requesting State is free to use the evidence or 
information for any purpose ``unless otherwise indicated by the 
Requested Party when executing the request.'' Once evidence 
obtained under the Treaty has been revealed to the public in a 
trial, that information effectively becomes part of the public 
domain, and is likely to become a matter of common knowledge, 
perhaps even be described in the press. The negotiators noted 
that once this has occurred, it is practically impossible for 
the Central Authority of the Requesting Party to block the use 
of that information by third parties.
    It should be noted that under Article 1(4), the 
restrictions outlined in Article 7 are for the benefit of the 
Contracting Parties, and the invocation and enforcement of 
these provisions are left entirely to the Contracting Parties. 
If a person alleges that a Israeli authority seeks to use 
information or evidence obtained from the United States in a 
manner inconsistent with this article, the person can inform 
the Central Authority of the United States of the allegations 
for consideration as a matter between the Contracting Parties.

Article 8--Statements, Testimony or Evidence Before Authorities of the 
                            Requested State

    Paragraph 1 states that the Requested State shall, upon 
request, endeavor to obtain a statement of a person for the 
purpose of an investigation, prosecution or proceeding of the 
Requesting State.
    Paragraph 2 requires that the Requested State shall, if 
necessary, compel the appearance of a person for taking 
testimony and producing documents, records, and articles to the 
same extent as would be permitted in investigations, 
prosecutions and proceedings of that State. The compulsion 
contemplated by this article can be accomplished by subpoena or 
any other means available under the law of the Requested State.
    Paragraph 3 requires that upon request the Requested State 
shall furnish information in advance about the date and place 
of the taking of statement, testimony or evidence.
    Paragraph 4 provides that any interested parties, including 
the defendant and his counsel in criminal cases, may be 
permitted by the Requested State to be present and pose 
questions during the taking of testimony under this article.
    Paragraph 5, when read together with Article 5(3), ensures 
that no person will be compelled to furnish information if he 
has a right not to do so under the law of the Requested State. 
Thus, a witness questioned in the United States pursuant to a 
request from Israel is guaranteed the right to invoke any of 
the testimonial privileges (e.g., attorney client, 
interspousal) available in the United States as well as the 
constitutional privilege against self-incrimination, to the 
extent that it might apply in the context of evidence being 
taken for foreign proceedings. \16\ A witness testifying in 
Israel may raise any of the similar privileges available under 
Israeli law.
---------------------------------------------------------------------------
    \16\ This is consistent with the approach taken in Title 28, United 
States Code, Section 1782.
---------------------------------------------------------------------------
    Paragraph 5 does require that if a witness attempts to 
assert a privilege that is unique to the Requesting State, the 
Requested State will take the desired evidence and turn it over 
to the Requesting State along with notice that it was obtained 
over a claim of privilege. The applicability of the privilege 
can then be determined in the Requesting State, where the scope 
of the privilege and the legislative and policy reasons 
underlying the privilege are best understood. A similar 
provision appears in many of our recent mutual legal assistance 
treaties. \17\
---------------------------------------------------------------------------
    \17\ See e.g., U.S.-Netherlands Mutual Legal Assistance Treaty, 
June 12, 1981, art. 5(1), T.I.A.S. No. 10734, 1359 U.N.T.S. 209; U.S.-
Bahamas Mutual Legal Assistance Treaty, June 12 & Aug. 18, 1987, art. 
9(2); U.S.-Mexico Mutual Legal Assistance Treaty, supra note 14, art. 
7(2); U.S.-Philippines Mutual Legal Assistance Treaty, supra note 5, 
art. 8(4).
---------------------------------------------------------------------------
    Paragraph 6 states that evidence produced pursuant to this 
article may be authenticated by an attestation, including, in 
the case of business records, authentication in the manner 
indicated in Form A appended to the Treaty. Thus, the provision 
establishes a procedure for authenticating records in a manner 
essentially similar to Title 18, United States Code, Section 
3505. It is understood that the second and third sentences of 
this paragraph provide for the admissibility of authenticated 
documents as evidence without additional foundation or 
authentication. With respect to the United States, this 
paragraph is self-executing, and does not need implementing 
legislation.
    Article 8(6) provides that the evidence authenticated by 
Form A is ``admissible,'' but of course, it will be up to the 
judicial authority presiding over the trial to determine 
whether the evidence should in fact be admitted. The 
negotiators intended that evidentiary tests other than 
authentication (such as relevance and materiality) would still 
have to be satisfied in each case.

               Article 9--Records of Government Agencies

    Paragraph 1 obliges each Party to furnish the other with 
copies of publicly available records, including documents or 
information in any form, possessed by a government department 
or agency in the Requested State. The term ``government 
departments and agencies'' includes all executive, judicial, 
and legislative units of the Federal, State, and local level in 
each country.
    Paragraph 2 provides that the Requested State may share 
with its treaty partner copies of nonpublic information in 
government files. The obligation under this provision is 
discretionary, and such requests may be denied in whole or in 
part. Moreover, the article states that the Requested State may 
only exercise its discretion to turn over information in its 
files ``to the same extent and under the same conditions'' as 
it would to its own law enforcement or judicial authorities. It 
is intended that the Central Authority of the Requested State, 
in close consultation with the interested law enforcement 
authorities of that State, will determine that extent and what 
those conditions would be.
    The discretionary nature of this provision was deemed 
necessary because government files in each State contain some 
kinds of information that would be available to investigative 
authorities in that State, but that justifiably would be deemed 
inappropriate to release to a foreign government. For example, 
assistance might be deemed inappropriate where the information 
requested would identify or endanger an informant, prejudice 
sources of information needed in future investigations, or 
reveal information that was given to the Requested State in 
return for a promise that it not be divulged. Of course, a 
request could be denied under this clause if the Requested 
State's law bars disclosure of the information.
    The delegations discussed whether this article should serve 
as a basis for exchange of information in tax matters. It was 
the intention of the United States delegation that the United 
States be able to provide assistance under the Treaty for tax 
offenses, as well as to provide information in the custody of 
the Internal Revenue Service for both tax offenses and non-tax 
offenses under circumstances that such information is available 
to U.S. law enforcement authorities. The United States 
delegation was satisfied after discussion that this Treaty is a 
``convention relating to the exchange of tax information'' for 
purposes of Title 26, United States Code, Section 6103(k)(4), 
and the United States would have the discretion to provide tax 
return information to Israel under this article in appropriate 
cases. \18\
---------------------------------------------------------------------------
    \18\ Thus, this treaty, like all of the other U.S. bilateral mutual 
legal assistance treaties, authorizes the Parties to provide tax return 
information in appropriate circumstances.
---------------------------------------------------------------------------
    Paragraph 3 states that documents provided under this 
article may be authenticated under the provisions of the 
Convention Abolishing the Requirement of Legalization for 
Foreign Public Documents, or may be authenticated in the manner 
specified by the Requesting State, which may include use of 
Form B appended to the Treaty, and if certified or 
authenticated in this manner, the evidence shall be admissible 
in evidence in the Requesting State. Thus, the Treaty 
establishes a procedure for authenticating official foreign 
documents that is consistent with Rule 902(3) of the Federal 
Rules of Evidence and Rule 44, Federal Rules of Civil 
Procedure.
    Like Article 8(6), Article 9(3) states that documents 
authenticated under this paragraph shall be ``admissible'' but 
it will, of course, be up to the judicial authority presiding 
over the trial to determine whether the evidence should in fact 
be admitted. The evidentiary tests other than authentication 
(such as relevance or materiality) must be established in each 
case.

Article 10--Appearance of Persons Before Authorities of the Requesting 
                                 State

    This article provides that upon request, the Requested 
State shall invite persons located in its territory to travel 
to the Requesting State to appear before an appropriate 
authority there. It shall notify the Requesting State of the 
invitee's response. An appearance in the Requesting State under 
this article is not mandatory, and the invitation may be 
refused by the prospective witness.
    The Requesting State would be expected to pay the expenses 
of such an appearance pursuant to Article 6 if requested by the 
person whose appearance is sought. It is assumed that such 
expenses would normally include the costs of transportation, 
room, and board. When the person is to appear in the United 
States, a nominal witness fee would also be provided.
    The article also provides that the Central Authority of the 
Requesting State shall promptly inform the Central Authority of 
the Requested State of the person's response.

               Article 11--Transfer of Persons in Custody

    In some criminal cases, a need arises for the testimony in 
one country of a witness in custody in another country. In some 
instances, foreign countries are willing and able to ``lend'' 
witnesses to the United States Government, provided the 
witnesses would be carefully guarded while in the United States 
and returned to the foreign country at the conclusion of the 
testimony. On occasion, the United States Justice Department 
has arranged for consenting federal inmates in the United 
States to be transported to foreign countries to assist in 
criminal proceedings. \19\
---------------------------------------------------------------------------
    \19\For example, in September, 1986, the United States Justice 
Department and the United States Drug Enforcement Administration 
arranged for four federal prisoners to be transported to the United 
Kingdom to testify for the Crown in Regina v. Dye, Williamson, Ells, 
Davies, Murphy, and Millard, a major narcotics prosecution in ``the Old 
Bailey'' (Central Criminal Court) in London.
---------------------------------------------------------------------------
    Paragraph 1 provides an express legal basis for cooperation 
in these matters. It is based on Article 26 of the United 
States-Switzerland Mutual Legal Assistance Treaty, \20\ which 
in turn is based on Article 11 of the European Convention on 
Mutual Assistance in Criminal Matters. \21\
---------------------------------------------------------------------------
    \20\ U.S.-Switzerland Mutual Legal Assistance Treaty, supra note 
10, art. 26.
    \21\ See also Title 18, United States Code, Section 3508, which 
provides for the transfer to the United States of witnesses in custody 
in other States whose testimony is needed at a federal criminal trial.
---------------------------------------------------------------------------
    Paragraph 2 provides that a person in the custody of the 
Requesting State whose presence is sought by the Requested 
State for purposes of assistance under this Treaty shall be 
transferred from the Requesting State to the Requested State if 
the person consents and if the Central Authorities of both 
States agree. This would also cover situations in which a 
person in custody in the United States on a criminal matter has 
sought permission to travel to another country to be present at 
a deposition being taken there in connection with the case. 
\22\
---------------------------------------------------------------------------
    \22\ See also United States v. King, 552 F.2d 833 (9th Cir. 1976), 
cert. denied, 430 U.S. 966 (1977), where the defendants insisted on 
traveling to Japan to be present at the deposition of certain witnesses 
in prison there.
---------------------------------------------------------------------------
    Paragraph 3 provides express authority for the receiving 
State to maintain such a person in custody throughout the 
person's stay there, unless the sending State specifically 
authorizes release. This paragraph also authorizes the 
receiving State to return the person in custody to the sending 
State, and provides that this return will occur in accordance 
with terms and conditions agreed upon by the Central 
Authorities. The initial transfer of a prisoner under this 
article requires the consent of the person involved and of both 
Central Authorities, but the provision does not require that 
the person consent to be returned to the sending State.
    Once the receiving State has agreed to assist the sending 
State's investigation or proceeding pursuant to this article, 
it would be inappropriate for the receiving State to hold the 
person transferred and require extradition proceedings before 
allowing him to return to the sending State as agreed. 
Therefore, Paragraph (3)(c) contemplates that extradition 
proceedings will not be required before the status quo is 
restored by the return of the person transferred. Paragraph 
(3)(d) states that the person is to receive credit for time 
served while in the custody of the receiving State. This is 
consistent with United States practice in these matters.
    Paragraph 4 provides that if the sending State notifies the 
receiving State that the transferred person is no longer 
required to be held in custody, that person shall either be 
expeditiously returned to the sending State or be set at 
liberty. A person so set at liberty shall be entitled to the 
cost of his return travel to the sending State, if he returns 
to that state.
    Paragraph 5 states that the Requesting State shall be 
responsible for making all necessary arrangements for the 
transit of transferred persons through third countries.

                        Article 12--Safe Conduct

    Paragraph 1 of Article 12 states that a person appearing 
before authorities in the Receiving State pursuant to a request 
under Article 10 or 11 shall not be subject to service of 
process, or be detained or subjected to any other restrictions 
of liberty with respect to criminal proceedings related to acts 
or convictions which preceded that person's departure from the 
Sending State, except as provided in Article 11.
    Paragraph 2 states that the Central Authority of the 
Receiving State may, in its discretion, determine whether a 
person appearing before the authorities of the Receiving State 
under Article 10 or 11 may be detained or subjected to any 
restriction of personal liberty with respect to civil 
proceedings related to any acts or omissions which preceded the 
person's departure from the Sending State.
    Paragraph 3 states that, when not inconsistent with its 
domestic laws, the Central Authority of the Receiving State 
may, in its discretion, determine that a person appearing 
before the authorities of the Receiving State under Article 10 
or 11 shall not be subject to service of process with respect 
to a civil proceedings related to any acts or omissions which 
preceded the person's departure from the sending state. Safe 
conduct may only be offered under this paragraph, however, when 
it is not inconsistent with the domestic law of the receiving 
state.
    None of these provisions prevent the prosecution of a 
person for perjury or any other crime committed while in the 
receiving State.
    Paragraph 4 states that the safe conduct guaranteed in this 
article shall cease fifteen days after the person has been 
notified that his presence is no longer required, and, being 
physically able to depart, he has not left the territory of the 
Receiving State or he has left the Receiving State and 
thereafter returns to it.

       Article 13--Location or Identification of Persons or Items

    This article provides for ascertaining the whereabouts in 
the Requested State of persons (such as witnesses, potential 
defendants, or experts) or items if the Requesting State seeks 
such information. This is a standard provision contained in all 
United States mutual legal assistance treaties. The Treaty 
requires only that the Requested State make ``best efforts'' to 
locate the persons or items sought by the Requesting State. The 
extent of such efforts will vary, of course, depending on the 
quality and extent of the information provided by the 
Requesting State concerning the suspected location and last 
known location.
    The obligation to locate persons or items is limited to 
persons or items that are or may be in the territory of the 
Requested State. Thus, the United States would not be obliged 
to attempt to locate persons or items which may be in third 
countries. In all cases, the Requesting State would be expected 
to supply all available information about the last known 
location of the persons or items sought.

                    Article 14--Service of Documents

    This article creates an obligation on the Requested State 
to use its best efforts to execute a request to effect the 
service of documents such as summons, complaints, subpoenas, or 
other legal papers pursuant to a Treaty request. Identical 
provisions appear in several U.S. mutual legal assistance 
treaties.
    It is expected that when the United States is the Requested 
State, service under the Treaty will be made by registered mail 
(in the absence of any request by Israel to follow a specified 
procedure for service) or by the United States Marshal's 
Service in instances in which personal service is requested.
    Paragraph 2 provides that when the documents to be served 
call for the appearance of a person in the Requesting State, 
the documents should be transmitted by the Requesting State to 
the Requested State a reasonable time before the date set for 
any such appearance.
    Paragraph 3 requires that proof of service be returned to 
the Requesting State in the manner specified in the request. If 
service cannot be effectuated, or cannot be effected in the 
manner specified, the Requesting State shall be so informed and 
shall be advised of the reasons.

                     Article 15--Search and Seizure

    It is sometimes in the interests of justice for one State 
to ask another to search for, secure, and deliver articles or 
objects needed in the former as evidence or for other purposes. 
United States courts can and do execute such requests under 
Title 28, United States Code, Section 1782, \23\ and Israeli' 
courts have the power to execute such requests, under Section 
3(a) of the Israeli mutual assistance law. This article creates 
a formal framework for handling such requests.
---------------------------------------------------------------------------
    \23\ See e.g., United States ex Rel. Public Prosecutor of 
Rotterdam, Netherlands v. Van Aalst, Case No 84-52-M-01 (M.D. Fla., 
Orlando Div.) (search warrant issued February 24, 1984).
---------------------------------------------------------------------------
    Paragraph 1 requires that the search and seizure request 
include ``information justifying such action under the laws of 
the Requested State.'' This means that normally a request to 
the United States from Israel will have to be supported by a 
showing of probable cause for the search. A United States 
request to Israel would have to satisfy the corresponding 
evidentiary standard there, which is ``reason to believe'' that 
the specified premises contains articles likely to be evidence 
of the commission of an offense. \24\
---------------------------------------------------------------------------
    \24\ See Section 23 of Israeli Criminal Procedure (Arrest and 
Search) Ordinance (New Version) 5729-1969.
---------------------------------------------------------------------------
    Paragraph 2 is designed to insure that a record is kept of 
articles seized and of articles delivered up under the Treaty. 
This provision effectively requires that, upon request, and to 
the extent possible, every official who has custody of a seized 
item shall certify the continuity of custody, the identity of 
the item, and the integrity of its condition.
    The article also provides that the certificates describing 
continuity of custody will be admissible without additional 
authentication at trial in the Requesting State, thus relieving 
the Requested State of the burden, expense, and inconvenience 
of having to send its law enforcement officers to the 
Requesting State to provide authentication and chain of custody 
testimony each time the Requesting State uses evidence produced 
under this article. The requirement that the certificates be 
admissible without additional authentication leaves the trier 
of fact free to bar use of the evidence itself, in spite of the 
certificate, if there is some reason to do so other than 
authenticity or chain of custody.
    Paragraph 3 states that the Requested State may require 
that the Requesting State agree to terms and conditions 
necessary to protect the interests of third parties in the item 
to be transferred. This article is similar to provisions in 
many other United States mutual legal assistance treaties. \25\
---------------------------------------------------------------------------
    \25\ See e.g., U.S.-Argentina Mutual Legal Assistance Treaty, supra 
note 5; U.S.-Bahamas Mutual Legal Assistance Treaty, supra note 17; 
U.S.-Canada Mutual Legal Assistance Treaty, supra note 14; U.S.-U.K. 
Mutual Legal Assistance Treaty Concerning the Cayman Islands, Jul. 3, 
1986; U.S.-Hungary Mutual Legal Assistance Treaty, Dec. 1, 1994; U.S.-
Korea Mutual Legal Assistance Treaty, Nov. 23, 1993; U.S.-Panama Mutual 
Legal Assistance Treaty, Apr. 11, 1991; U.S.-Philippines Mutual Legal 
Assistance Treaty, supra note 5; U.S.-Spain Mutual Legal Assistance 
Treaty, Nov. 20, 1990; U.S.-U.K. Mutual Legal Assistance Treaty, Jan. 
6, 1994.
---------------------------------------------------------------------------

   Article 16--Return of Documents, Records and Articles of Evidence

    This article provides that any documents, records, or items 
of evidence furnished under the Treaty must be returned to the 
Requested State as soon as possible. This would normally be 
invoked only if the Central Authority of the Requested State 
specifically requests it at the time that the items are 
delivered to the Requesting State. It is anticipated that 
unless original records or articles of significant intrinsic 
value are involved, the Requested State will not usually 
request return of the items, but this is a matter best left to 
development in practice.

            Article 17--Assistance in Forfeiture Proceedings

    A major goal of the Treaty is to enhance the efforts of 
both the United States and Israel in combating narcotics 
trafficking. One significant strategy in this effort is action 
by United States authorities to seize and confiscate money, 
property, and other proceeds of drug trafficking.
    This article is similar to Article 17 in the U.S.-Canada 
Mutual Legal Assistance Treaty and Article 15 of the U.S.-
Thailand Mutual Legal Assistance Treaty. Paragraph 1 states 
that the Parties shall assist one another to the extent 
permitted by their respective laws in proceedings relating to 
the forfeiture of the proceeds or instrumentalities of 
offenses. It specifically recognizes that the authorities in 
the Requested State may take immediate action to temporarily 
seize or immobilize the assets pending further proceedings. 
Thus, if the law of the Requested State enables it to seize 
assets in aid of a proceeding in the Requesting State or to 
enforce a judgment of forfeiture levied in the Requesting 
State, the Treaty encourages the Requested State to do so. The 
language of the article is carefully selected, however, so as 
not to require either State to take any action that would 
exceed its internal legal authority. It does not mandate 
institution of forfeiture proceedings or initiation of 
temporary immobilization in either country against property 
identified by the other if the relevant prosecution authorities 
do not deem it proper to do so. \26\
---------------------------------------------------------------------------
    \26\ In Israel, unlike the U.S. law, the law does not currently 
allow for civil forfeiture. However, Israeli law does permit forfeiture 
for certain criminal offenses (at present including in particular 
narcotics violations), and ordinarily a defendant must be convicted in 
order for Israel to confiscate the defendant's property.
---------------------------------------------------------------------------
    Paragraph 2 authorizes the Central Authority of one State 
to notify the other of the existence in the latter's territory 
of proceeds or instrumentalities of offenses that may be 
forfeitable or otherwise subject to seizure or immobilization 
under the laws of the other Party. The term ``proceeds or 
instrumentalities'' was intended to include things such as 
money, vessels, or other valuables which are either being used 
in the crime or which were purchased or obtained as a result of 
the crime.
    Upon receipt of notice under this article, the Central 
Authority of the State in which the proceeds or 
instrumentalities are located may take whatever action is 
appropriate under its law. For instance, if the assets in 
question are located in the United States and were obtained as 
a result of a fraud in Israel, they could be seized under 18 
U.S.C. 981 in aid of a prosecution under Title 18, U.S.C. 
Section 2314, \27\ or be subject to a temporary restraining 
order in anticipation of a civil action for the return of the 
assets to the lawful owner. Proceeds of a foreign kidnapping, 
robbery, extortion or a fraud by or against a foreign bank are 
civilly and criminally forfeitable in the U.S. since these 
offenses are predicate offenses under U.S. money laundering 
laws. \28\ Thus, it is a violation of United States criminal 
law to launder the proceeds of these foreign fraud or theft 
offenses, when such proceeds are brought into the United 
States.
---------------------------------------------------------------------------
    \27\ This statute makes it an offense to transport money or 
valuables in interstate or foreign commerce knowing that they were 
obtained by fraud in the United States or abroad.
    \28\ Title 18, United States Code, Section 1956(c)(7)(B).
---------------------------------------------------------------------------
    If the assets are the proceeds of drug trafficking, it is 
especially likely that the Contracting Parties will be able and 
willing to help one another. Title 18, United States Code, 
Section 981(a)(1)(B), allows for the forfeiture to the United 
States of property ``which represents the proceeds of an 
offense against a foreign nation involving the manufacture, 
importation, sale, or distribution of a controlled substance 
(as such term is defined for the purposes of the Controlled 
Substance Act) within whose jurisdiction such offense or 
activity would be punishable by death or imprisonment for a 
term exceeding one year if such act or activity had occurred 
within the jurisdiction of the United States.'' This is 
consistent with the laws in other countries, such as 
Switzerland and Canada; there is a growing trend among nations 
toward enacting legislation of this kind in the battle against 
narcotics trafficking. \29\ The United States delegation 
expects that Article 17 of the Treaty will enable this 
legislation to be even more effective.
---------------------------------------------------------------------------
    \29\ Article 5 of the United Nations Convention Against Illicit 
Traffic in Narcotic Drugs and Psychotropic Substances, calls for the 
States that are party to enact legislation to forfeit illicit drug 
proceeds and to assist one another in such matters. United Nations 
Convention Against Illicit Traffic in Narcotic Drugs an Psychotropic 
Substances, with annex and final act, done at Vienna, Dec. 20, 1988.
---------------------------------------------------------------------------
    United States law permits the government to transfer a 
share of certain forfeited property to other countries that 
participate directly or indirectly in the seizure or forfeiture 
of the property. Under regulations promulgated by the Attorney 
General, the amount transferred generally reflects the 
contribution of the foreign government in law enforcement 
activity which led to the seizure and forfeiture of the 
property. The law requires that the transfer be authorized by 
an international agreement between the United States and the 
foreign country, and be approved by the Secretary of State. 
\30\ Paragraph 3 is consistent with this framework, and will 
enable a Contracting Party having custody over proceeds or 
instrumentalities of offenses to transfer forfeited assets, or 
the proceeds of the sale of such assets, to the other 
Contracting Party, at the former's discretion and to the extent 
permitted by its respective laws.
---------------------------------------------------------------------------
    \30\ See Title 18, United States Code, Section 981 (i)(1).
---------------------------------------------------------------------------
    Paragraph 4 states that the parties shall assist each other 
to the extent permitted by their respective laws in connection 
with restitution to victims of crime, and the imposition or 
collection of fines in criminal proceedings. However, there is 
no obligation under this paragraph to enforce restitution 
orders or to collect fines or to enforce judgments imposing 
fines.

         Article 18--Referral For Investigation or Prosecution

    This article is similar to provisions in other United 
States mutual legal assistance treaties \31\ that deal with the 
situation in which the officials of one State determine from 
their investigation of a crime that prosecution of the offense 
by the authorities of the other State is more appropriate. For 
example, Israeli investigators probing the illegal possession 
of narcotics in Israel may learn that the narcotics were 
smuggled out of the country to the United States, and decide to 
ask the United States to continue the investigation, turning 
over to the Drug Enforcement Administration such evidence as 
they have assembled.
---------------------------------------------------------------------------
    \31\ U.S.-Thailand Mutual Legal Assistance Treaty, Mar. 19, 1986, 
art. 14; U.S.-Spain Mutual Legal Assistance Treaty, supra note 24, 
1990, art. 19.
---------------------------------------------------------------------------
    This article was included in this Treaty because of the 
growing number of cases in which Israel prosecutes Israeli 
citizens for crimes committed in the United States in lieu of 
extradition, \32\ and United States prosecutors cooperate with 
Israeli authorities to achieve successful prosecutions. It is 
anticipated that this process will be facilitated by the 
Treaty.
---------------------------------------------------------------------------
    \32\ See Cohen, New York v. Kirman/Israel v. Kirman: A Prosecution 
In Tel Aviv Under Israeli Law for a Narcotics Offense Committed in New 
York, 4 Crim. L. F. 597 (1993); Abramovsky, Partners Against Crime: 
Joint Prosecutions of Israeli Organized Crime Figures by U.S. and 
Israeli Authorities, 5 Fordham Int'l L.J. 1903 (1996).
---------------------------------------------------------------------------

                      Article 19--Other Assistance

    This article states that assistance and other procedures 
set forth in this Treaty shall not prevent assistance under any 
other applicable international agreement between the two 
countries. It also provides that the Treaty shall not be deemed 
to prevent recourse to any assistance available under the 
domestic laws of either country. Thus, the Treaty leaves the 
provisions of United States and Israeli law on letters rogatory 
completely undisturbed, and does not alter any pre-existing 
agreements concerning investigative assistance.

                        Article 20--Consultation

    Experience has shown that as the parties to a treaty of 
this kind work together over the years, they become aware of 
various practical ways to make the treaty more effective and 
their own efforts more efficient. This article anticipates that 
the Contracting Parties will share those ideas with one 
another, and encourages them to agree on the implementation of 
such measures. Practical measures of this kind might include 
methods of keeping each other informed of the progress of 
investigations and cases in which treaty assistance was 
utilized, or the use of the Treaty to obtain evidence that 
otherwise might be sought via methods less acceptable to the 
Requested State. Very similar provisions are contained in 
recent United States mutual legal assistance treaties. \33\ It 
is anticipated that the Central Authorities will conduct 
regular consultations pursuant to this article.
---------------------------------------------------------------------------
    \33\ See, e.g., U.S.-Philippines Mutual Legal Assistance Treaty, 
supra note 5, art. 18; U.S.-Canada Mutual Legal Assistance Treaty, 
supra note 14, art. XVIII; U.S.-U.K. Mutual Legal Assistance Treaty 
Concerning the Cayman Islands, supra note 24, art. 18; U.S.-Argentina 
Mutual Legal Assistance Treaty, supra note 5, art. 18.
---------------------------------------------------------------------------

     Article 21--Ratification, Entry Into Force, Application, and 
                              Termination

    Paragraph 1 contains standard provisions on the procedure 
for ratification and the exchange of the instruments of 
ratification.
    Paragraph 2 provides that the Treaty shall enter into force 
immediately upon the exchange of instruments of ratification.
    Paragraph 3 provides that the Treaty shall apply to any 
request presented after it enters into force, even if the 
request relates to offenses that occurred before the Treaty 
enters into force. Provisions of this kind are common in law 
enforcement agreements.
    Paragraph 4 contains standard provisions concerning the 
procedure for terminating the Treaty. Termination shall take 
effect six months after the date of written notification. 
Similar termination provisions are included in other United 
States mutual legal assistance treaties.

 Technical Analysis of the Treaty Between the United States of America 
   and Saint Kitts and Nevis on Mutual Legal Assistance in Criminal 
                                Matters

    On September 18, 1997, the United States signed a treaty 
with Saint Kitts and Nevis on Mutual Legal Assistance in 
Criminal Matters (``the Treaty''). In recent years, the United 
States has signed similar treaties with a number of countries 
as part of a highly successful effort to modernize the legal 
tools available to law enforcement authorities in need of 
foreign evidence for use in criminal cases.
    The Treaty is expected to be a valuable weapon for the 
United States in its efforts to combat organized crime, 
transnational terrorism, and international drug trafficking in 
the eastern Caribbean.
    It is anticipated that the Treaty will be implemented in 
the United States pursuant to the procedural framework provided 
by Title 28, United States Code, Section 1782. Saint Kitts and 
Nevis has its own mutual legal assistance laws in place for 
implementing the Treaty, and does not anticipate enacting new 
legislation. \1\
---------------------------------------------------------------------------
    \1\``An Act to make provision with respect to the Scheme relating 
to Mutual Assistance in Criminal Matters within the Commonwealth and to 
facilitate its operation in St. Kitts and Nevis and to make provision 
concerning mutual assistance in Criminal Matters between Kitts and 
Nevis and countries other than Commonwealth countries,'' hereinafter 
``the Mutual Assistance in Criminal Matters Act, 1993.'' Since there 
are some differences between the Treaty and St. Kitts and Nevis law, it 
is anticipated that St. Kitts and Nevis will issue regulations under 
Section 29 of the Act that will ``direct that [the] Act shall apply in 
relation to [the United States] as if it were a Commonwealth country, 
subject to such limitations, conditions, exceptions or qualifications 
(if any) as may be prescribed . . .'' in order for the terms of the 
Treaty to prevail.
---------------------------------------------------------------------------
    The following technical analysis of the Treaty was prepared 
by the Office of International Affairs, United States 
Department of Justice, and the Office of the Legal Adviser, 
United States Department of State, based upon the negotiating 
notes. The technical analysis includes a discussion of U.S. law 
and relevant practice as of the date of its preparation, which 
are, of course, subject to change. Foreign law discussions 
reflect the current state of that law, to the best of the 
drafters' knowledge.

                     Article 1--Scope of Assistance

    Paragraph 1 requires the Parties to provide mutual 
assistance in connection with the investigation, prosecution, 
and prevention of offenses, and in proceedings relating to 
criminal matters.
    The negotiators specifically agreed that the term 
``investigations'' includes grand jury proceedings in the 
United States and similar pre-charge proceedings in Saint Kitts 
and Nevis, and other legal measures taken prior to the filing 
of formal charges in either State. \2\ The term ``proceedings'' 
was intended to cover the full range of proceedings in a 
criminal case, including such matters as bail and sentencing 
hearings. \3\ It was also agreed that since the phrase 
``proceedings related to criminal matters'' is broader than the 
investigation, prosecution or sentencing process itself, 
proceedings covered by the Treaty need not be strictly criminal 
in nature. For example, proceedings to forfeit to the 
government the proceeds of illegal drug trafficking may be 
civil in nature; \4\ yet such proceedings are covered by the 
Treaty.
---------------------------------------------------------------------------
    \2\ The requirement that assistance be provided under the Treaty at 
the pre-indictment stage is critical to the U.S., as our investigators 
and prosecutors often need to obtain evidence from foreign countries in 
order to determine whether or not to file criminal charges. This 
obligation is a reciprocal one; the U.S. must assist Saint Kitts and 
Nevis under the Treaty in connection with investigations prior to 
charges being filed in Saint Kitts and Nevis. Prior to the 1996 
amendments to Title 28, United States Code, Section 1782, some U.S. 
courts had interpreted that provision to require that assistance be 
provided in criminal matters only if formal charges have already been 
filed abroad, or are ``imminent,'' or ``very likely.'' McCarthy, ``A 
Proposed Uniform Standard for U.S. Courts in Granting Requests for 
International Judicial Assistance,'' 15 Fordham Int'l Law J. 772 
(1991). The 1996 amendment eliminates this problem, however, by 
amending subsec. (a) to state ``including criminal investigation 
conducted before formal accusation.'' In any event, this Treaty was 
intentionally written to cover criminal investigations that have just 
begun as well as those that are nearly completed; it draws no 
distinction between cases in which charges are already pending, 
``imminent,'' ``very likely,'' or ``very likely very soon.'' Thus, U.S. 
courts should execute requests under the Treaty without examining such 
factors.
    \3\ One United States court has interpreted Title 28, United States 
Code, Section 1782, as permitting the execution of a request for 
assistance from a foreign country only if the evidence sought is for 
use in proceedings before an adjudicatory ``tribunal'' in the foreign 
country. In Re Letters Rogatory Issued by the Director of Inspection of 
the Gov't of India, 385 F.2d 1017 (2d Cir. 1967); Fonseca v. 
Blumenthal, 620 F.2d 322 (2d Cir. 1980). This rule poses an unnecessary 
obstacle to the execution of requests concerning matters which are at 
the investigatory stage, or which are customarily handled by 
administrative officials in the Requesting State. Since this paragraph 
of the Treaty specifically permits requests to be made in connection 
with matters not within the jurisdiction of an adjudicatory 
``tribunal'' in the Requesting State, this paragraph accords the courts 
broader authority to execute requests than does Title 28, United States 
Code, Section 1782, as interpreted in the India and Fonseca cases.
    \4\See 21 U.S.C. Sec.  881; 18 U.S.C. Sec.  1964.
---------------------------------------------------------------------------
    Paragraph 2 lists the major types of assistance 
specifically considered by the Treaty negotiators. Most of the 
items listed in the paragraph are described in detail in 
subsequent articles. The list is not intended to be exhaustive, 
a fact that is signaled by the word ``include'' in the opening 
clause of the paragraph and reinforced by the final 
subparagraph.
    Many law enforcement treaties, especially in the area of 
extradition, condition cooperation upon a showing of ``dual 
criminality'', i.e., proof that the facts underlying the 
offense charged in the Requesting State would also constitute 
an offense had they occurred in the Requested State. Paragraph 
3 makes it clear that there is no general requirement of dual 
criminality for cooperation. Thus, assistance may be provided 
even when the criminal matter under investigation in the 
Requesting State would not be a crime inxcept as otherwise 
provided in this Treaty,'' a phrase which refers to Article 
3(1)(e), under which the Requested State may, in its 
discretion, require dual criminality before executing a request 
under Article 14 (involving searches and seizures) or Article 
16 (involving asset forfeiture matters). Article 1(3) is 
important because United States and Saint Kitts and Nevis 
criminal law differ, and a general dual criminality rule would 
make assistance unavailable in many significant areas. This 
type of limited dual criminality provision is found in other 
U.S. mutual legal assistance treaties. \5\ During the 
negotiations, the United States delegation received assurances 
that assistance would be available under the Treaty to the 
United States in investigations of such offenses as conspiracy; 
drug trafficking, including continuing criminal enterprise 
(Title 21, United States Code, Section 848); offenses under the 
racketeering statutes (Title 18, United States Code, Section 
1961-1968); money laundering; crimes against environmental 
protection laws; and antitrust violations.
---------------------------------------------------------------------------
    \5\ See e.g., U.S.-Argentina Treaty on Mutual Legal Assistance in 
Criminal Matters, Dec. 4, 1990, art. 1(3); U.S.-Philippines Treaty on 
Mutual Legal Assistance in Criminal Matters, Nov. 13, 1994, art. 1(3).
---------------------------------------------------------------------------
    While the Treaty does not require dual criminality in 
general, Saint Kitts and Nevis' delegation did raise questions 
about assistance in one area in which the criminal laws of the 
Parties differ. Since Saint Kitts and Nevis currently has no 
income tax legislation, it suggested that the Treaty restrict 
mutual assistance in tax cases, noting that such restrictions 
are contained in the United States' mutual legal assistance 
treaty with the United Kingdom regarding the Cayman Islands. 
The United States delegation was unwilling to agree that this 
Treaty be so limited, because criminal tax prosecutions are 
often used to pursue and prosecute major criminals such as drug 
traffickers and organized crime figures. Inhis treaty is 
intended solely for mutual legal assistance in criminal matters 
between the Parties as set forth in paragraph (1) above,'' 
thereby emphasizing that the Treaty applies only to criminal 
tax matters. At Saint Kitts and Nevis' request, diplomatic 
notes subsequently were exchanged indicating the Parties' 
agreement that Saint Kitts and Nevis may interpret Article 1 to 
exclude assistance under the treaty for civil and 
administrative income tax matters that are unrelated to any 
criminal matter.
    Paragraph 4 contains a standard provision in United States 
mutual legal assistance treaties \6\ which states that the 
Treaty is intended solely for government-to-government mutual 
legal assistance. The Treaty is not intended to provide to 
private persons a means of evidence gathering, or to extend 
generally to civil matters. Private litigants in the United 
States may continue to obtain evidence from Saint Kitts and 
Nevis by letters rogatory, an avenue of international 
assistance that the Treaty leaves undisturbed. Similarly, the 
paragraph provides that the Treaty is not intended to create 
any right in a private person to suppress or exclude evidence 
provided pursuant to the Treaty, or to impede the execution of 
a request.
---------------------------------------------------------------------------
    \6\ See United States v. Johnpoll, 739 F.2d 702 (2d Cir. 1984), 
cert. denied, 469 U.S. 1075 (1984).
---------------------------------------------------------------------------

                     Article 2--Central Authorities

    This article requires that each Party establish a ``Central 
Authority'' for transmission, receipt, and handling of Treaty 
requests. The Central Authority of the United States would make 
all requests to Saint Kitts and Nevis on behalf of federal 
agencies, state agencies, and local law enforcement authorities 
in the United States. Saint Kitts and Nevis' Central Authority 
will make all requests emanating from officials in Saint Kitts 
and Nevis.
    The Central Authority for the Requesting State will 
exercise discretion as to the form and content of requests, and 
the number and priority of requests. The Central Authority of 
the Requested State is also responsible for receiving each 
request, transmitting it to the appropriate federal or state 
agency, court, or other authority for execution, and ensuring 
that a timely response is made.
    Paragraph 2 provides that the Attorney General or a person 
designated by the Attorney General will be the Central 
Authority for the United States. The Attorney General has 
delegated the authority to handle the duties of Central 
Authority under mutual assistance treaties to the Assistant 
Attorney General in charge of the Criminal Division. \7\ 
Paragraph 2 also states that the Attorney General of Saint 
Kitts and Nevis or a person designated by the Attorney General 
will serve as the Central Authority for Saint Kitts and Nevis. 
\8\
---------------------------------------------------------------------------
    \7\ 28 C.F.R. Sec.  0.64-1. The Assistant Attorney General for the 
Criminal Division has in turn delegated this authority to the Deputy 
Assistant Attorneys General and the Director of the Criminal Division's 
Office of International Affairs, in accordance with the regulation. 
Directive No. 81, 45 Fed. Reg. 79,758 (1980), as corrected at 48 Fed. 
Reg. 54,595 (1983). That delegation was subsequently extended to the 
Deputy Directors of the Office of International Affairs. 59 Fed. Reg. 
42,160 (1994).
    \8\ Section 4, Mutual Assistance in Criminal Matters Act, 1993.
---------------------------------------------------------------------------
    Paragraph 3 states that the Central Authorities shall 
communicate directly with one another for the purposes of the 
Treaty. It is anticipated that such communication will be 
accomplished by telephone, telefax, or INTERPOL channels, or 
any other means, at the option of the Central Authorities 
themselves.

                  Article 3--Limitations on Assistance

    This article specifies the limited classes of cases in 
which assistance may be denied under the Treaty.
    Paragraph (1)(a) permits the Requested State to deny a 
request if it relates to an offense under military law that 
would not be an offense under ordinary criminal law. Similar 
provisions appear in many other U.S. mutual legal assistance 
treaties.
    Paragraph (1)(b) permits the Central Authority of the 
Requested State to deny a request if execution of the request 
would prejudice the security or other essential public 
interests of that State. All United States mutual legal 
assistance treaties contain provisions allowing the Requested 
State to decline to execute a request if execution would 
prejudice its essential interests.
    The delegations agreed that the word ``security'' would 
include cases in which assistance might involve disclosure of 
information that is classified for national security reasons. 
It is anticipated that the United States Department of Justice, 
in its role as Central Authority for the United States, would 
work closely with the Department of State and other government 
agencies to determine whether to execute a request that might 
fall in this category.
    The delegations also agreed that the phrase ``essential 
public interests'' was intended to narrowly limit the class of 
cases in which assistance may be denied. It would not be enough 
that the Requesting State's case is one that would be 
inconsistent with public policy had it been brought in the 
Requested State. Rather, the Requested State must be convinced 
that execution of the request would seriously conflict with 
significant public policy. An example might be a request 
involving prosecution by the Requesting State of conduct which 
occurred in the Requested State and is constitutionally 
protected in that State.
    However, it was agreed that ``essential public interests'' 
could include interests unrelated to national military or 
political security, and be invoked if the execution of a 
request would violate essential United States interests related 
to the fundamental purposes of the Treaty. For example, one 
fundamental purpose of the Treaty is to enhance law enforcement 
cooperation, and attaining that purpose would be hampered if 
sensitive law enforcement information available under the 
Treaty were to fall into the wrong hands. Therefore, the United 
States Central Authority may invoke paragraph 1(b) to decline 
to provide sensitive or confidential drug related information 
pursuant to a request under this Treaty whenever it determines, 
after appropriate consultation with law enforcement, 
intelligence, and foreign policy agencies, that a senior 
foreign government official who will have access to the 
information is engaged in or facilitates the production or 
distribution of illegal drugs and is using the request to the 
prejudice of a U.S. investigation or prosecution. \9\
---------------------------------------------------------------------------
    \9\ This is consistent with the Senate resolution of advice and 
consent to ratification, e.g., of the mutual legal assistance treaties 
with Mexico, Canada, Belgium, Thailand, the Bahamas, and the United 
Kingdom Concerning the Cayman Islands. Cong. Rec. 13884 (1989) (treaty 
citations omitted). See also Staff of Senate Comm. on Foreign 
Relations, 100th Cong., 2nd Sess., Mutual Legal Assistance Treaty 
Concerning the Cayman Islands 67 (1988) (testimony of Mark M. Richard, 
Deputy Assistant Attorney General, Criminal Division, United States 
Department of Justice).
---------------------------------------------------------------------------
    In general, the mere fact that the execution of a request 
would involve the disclosure of records protected by bank or 
business secrecy in the Requested State would not justify 
invocation of the ``essential public interests'' provision. 
Indeed, a major objective of the Treaty is to provide a formal, 
agreed channel for making such information available for law 
enforcement purposes. In the course of the negotiations, the 
Saint Kitts and Nevis' delegation expressed its view that in 
very exceptional and narrow circumstances the disclosure of 
business or banking secrets could be of such significant 
importance to its Government (e.g., if disclosure would 
effectively destroy an entire domestic industry rather than 
just a specific business entity) that it could prejudice that 
State's ``essential public interests'' and entitle it to deny 
assistance. \10\ The U.S. delegation did not disagree that 
there might be such extraordinary circumstances, but emphasized 
its view that denials of assistance on this basis by either 
party should be extremely rare.
---------------------------------------------------------------------------
    \10\ The Saint Kitts and Nevis view of this provision is thus 
similar to the Swiss view of Article 3(2) of the U.S.-Switzerland 
Treaty. See Technical Analysis to the Treaty between the U.S. and 
Switzerland on Mutual Assistance in Criminal Matters, signed May 25, 
1973. U.S. Senate Exec. F, 94th Cong. 2d Sess. p. 39 (1976).
---------------------------------------------------------------------------
    Paragraph (1)(c) permits the denial of a request if it is 
not made in conformity with the Treaty.
    Paragraph (1)(d) permits denial of a request if it involves 
a political offense. \11\ It is anticipated that the Central 
Authorities will employ jurisprudence similar to that used in 
the extradition treaties for determining what is a ``political 
offense.'' These restrictions are similar to those found in 
other mutual legal assistance treaties.
---------------------------------------------------------------------------
    \11\ See Section 19(2)(a) and 19(2)(b), Mutual Assistance in 
Criminal Matters Act, 1993.
---------------------------------------------------------------------------
    Paragraph (1)(e) permits denial of a request if there is no 
``dual criminality'' with respect to requests made pursuant to 
Article 14 (involving searches and seizures) or Article 16 
(involving asset forfeiture matters).
    Finally, Paragraph (1)(f) permits denial of the request if 
execution would be contrary to the Constitution of the 
Requested State. This provision was deemed necessary under 
Saint Kitts and Nevis law, \12\ and is similar to clauses in 
other United States mutual legal assistance treaties. \13\
---------------------------------------------------------------------------
    \12\ Section 19(2)(e), Mutual Assistance in Criminal Matters Act, 
1993.
    \13\ U.S.-Jamaica Mutual Legal Assistance Treaty, July 7, 1989, 
art. 2(1)(e); U.S.-Nigeria Mutual Legal Assistance Treaty, Sept. 13, 
1989, art. III(1)(d).
---------------------------------------------------------------------------
    Paragraph 2 is similar to Article 3(2) of the U.S.-
Switzerland Mutual Legal Assistance Treaty, \14\ and obliges 
the Requested State to consider imposing appropriate conditions 
on its assistance in lieu of denying a request outright 
pursuant to the first paragraph of the article. For example, a 
Contracting Party might request information that could be used 
either in a routine criminal case (which would be within the 
scope of the Treaty) or in a politically motivated prosecution 
(which would be subject to refusal). This paragraph would 
permit the Requested State to provide the information on the 
condition that it be used only in the routine criminal case. 
Naturally, the Requested State would notify the Requesting 
State of any proposed conditions before actually delivering the 
evidence in question, thereby according the Requesting State an 
opportunity to indicate whether it is willing to accept the 
evidence subject to the conditions. If the Requesting State 
does accept the evidence subject to the conditions, it must 
honor the conditions.
---------------------------------------------------------------------------
    \14\U.S.-Switzerland Mutual Legal Assistance Treaty, May 25, 1973, 
art. 26, 27 U.S.T. 2019, T.I.A.S. No. 8302, 1052 U.N.T.S. 61.
---------------------------------------------------------------------------
    Paragraph 3 effectively requires that the Central Authority 
of the Requested State promptly notify the Central Authority of 
the Requesting State of the basis for any denial of assistance.
    This ensures that, when a request is only partly executed, 
the Requested State will provide some explanation for not 
providing all of the information or evidence sought. This 
should avoid misunderstandings, and enable the Requesting State 
to better prepare its requests in the future.

                Article 4--Form and Contents of Requests

    Paragraph 1 requires that requests be in writing, except 
that the Central Authority of the Requested State may accept a 
request in another form in ``emergency situations.'' A request 
in another form must be confirmed in writing within ten days 
unless the Central Authority of the Requested State agrees 
otherwise.
    Paragraph 2 lists the four kinds of information deemed 
crucial to the efficient operation of the Treaty which must be 
included in each request. Paragraph 3 outlines kinds of 
information that are important but not always crucial, and 
should be provided ``to the extent necessary and possible.'' In 
keeping with the intention of the Parties that requests be as 
simple and straightforward as possible, there is no requirement 
under the Treaty that a request be legalized or certified in 
any particular manner.

                    Article 5--Execution of Requests

    Paragraph 1 requires each Central Authority promptly to 
execute requests. The negotiators intended that the Central 
Authority, upon receiving a request, will first review the 
request, then promptly notify the Central Authority of the 
Requesting State if the request does not appear to comply with 
the Treaty's terms. If the request does satisfy the Treaty's 
requirements and the assistance sought can be provided by the 
Central Authority itself, the request will be fulfilled 
immediately. If the request meets the Treaty's requirements but 
its execution requires action by some other entity in the 
Requested State, the Central Authority will promptly transmit 
the request to the correct entity for execution.
    When the United States is the Requested State, it is 
anticipated that the Central Authority will transmit most 
requests to federal investigators, prosecutors, or judicial 
officials for execution if the Central Authority deems it 
appropriate to do so.
    Paragraph 1 further authorizes and requires the federal, 
state, or local agency or authority selected by the Central 
Authority to do everything within its power and take whatever 
action would be necessary to execute the request. This 
provision is not intended or understood to authorize the use of 
the grand jury in the United States for the collection of 
evidence pursuant to a request from Saint Kitts and Nevis. 
Rather, it is anticipated that when a request from Saint Kitts 
and Nevis requires compulsory process for execution, the United 
States Department of Justice would ask a federal court to issue 
the necessary process under Title 28, United States Code, 
Section 1782, and the provisions of the Treaty. \15\
---------------------------------------------------------------------------
    \15\ This paragraph of the Treaty specifically authorizes United 
States courts to use all of their powers to issue subpoenas and other 
process to satisfy a request under the Treaty.
---------------------------------------------------------------------------
    The third sentence in Article 5(1) reads ``[t]he competent 
judicial or other authorities of the Requested State shall have 
power to issue subpoenas, search warrants, or other orders 
necessary to execute the request.'' This language reflects an 
understanding that the Parties intend to provide each other 
with every available form of assistance from judicial and 
executive branches of government in the execution of mutual 
assistance requests. The phrase refers to ``judicial or other 
authorities'' to include all those officials authorized to 
issue compulsory process that might be needed in executing a 
request. For example, in Saint Kitts and Nevis, justices of the 
peace and senior police officers are empowered to issue certain 
kinds of compulsory process under certain circumstances.
    Paragraph 2 states that the Central Authority of the 
Requested State shall make all necessary arrangements for and 
meet the costs of representing the Requesting State in any 
proceedings in the Requested State arising out of the request 
for assistance. Thus, it is understood that if execution of the 
request entails action by a judicial or administrative agency, 
the Central Authority of the Requested State shall arrange for 
the presentation of the request to that court or agency at no 
cost to the Requesting State. Since the cost of retaining 
counsel abroad to present and process letters rogatory is 
sometimes quite high, this provision for reciprocal legal 
representation in Paragraph 2 is a significant advance in 
international legal cooperation. It is also understood that 
should the Requesting State choose to hire private counsel for 
a particular request, it is free to do so at its own expense.
    Paragraph 3 is inspired by Article 5(5) of the U.S.-
Jamaican Mutual Legal Assistance Treaty \16\, and provides, 
that ``[r]equests shall be executed according to the internal 
laws and procedures of the Requested State except to the extent 
that this Treaty provides otherwise.'' Thus, the method of 
executing a request for assistance under the Treaty must be in 
accordance with the Requested State's internal laws absent 
specific contrary procedures in the Treaty itself. Thus, 
neither State is expected to take any action pursuant to a 
treaty request which would be prohibited under its internal 
laws. For the United States, the Treaty is intended to be self-
executing; no new or additional legislation will be needed to 
carry out the obligations undertaken.
---------------------------------------------------------------------------
    \16\ U.S.-Jamaica Mutual Legal Assistance Treaty, supra note 13.
---------------------------------------------------------------------------
    The same paragraph requires that procedures specified in 
the request shall be followed in the execution of the request 
except to the extent that those procedures cannot lawfully be 
followed in the Requested State. This provision is necessary 
for two reasons.
    First, there are significant differences between the 
procedures which must be followed by United States and Saint 
Kitts and Nevis authorities in collecting evidence in order to 
assure the admissibility of that evidence at trial. For 
instance, United States law permits documentary evidence taken 
abroad to be admitted in evidence if the evidence is duly 
certified and the defendant has been given fair opportunity to 
test its authenticity. \17\ Saint Kitts and Nevis law currently 
contains no similar provision. Thus, documents assembled in 
Saint Kitts and Nevis in strict conformity with its procedures 
on evidence might not be admissible in United States courts. 
Similarly, United States courts utilize procedural techniques 
such as videotape depositions to enhance the reliability of 
evidence taken abroad, and some of these techniques, while not 
forbidden, are not used in Saint Kitts and Nevis.
---------------------------------------------------------------------------
    \17\ Title 18, United States Code, Section 3505.
---------------------------------------------------------------------------
    Second, the evidence in question could be needed for 
subjection to forensic examination, and sometimes the 
procedures which must be followed to enhance the scientific 
accuracy of such tests do not coincide with those utilized in 
assembling evidence for admission into evidence at trial. The 
value of such forensic examinations could be significantly 
lessened--and the Requesting State's investigation could be 
retarded--if the Requested State were to insist unnecessarily 
on handling the evidence in a manner usually reserved for 
evidence to be presented to its own courts.
    Both delegations agreed that the Treaty's primary goal of 
enhancing law enforcement in the Requesting State could be 
frustrated if the Requested State were to insist on producing 
evidence in a manner which renders the evidence inadmissible or 
less persuasive in the Requesting State. For this reason, 
Paragraph 3 requires the Requested State to follow the 
procedure outlined in the request to the extent that it can, 
even if the procedure is not that usually employed in its own 
proceedings. However, if the procedure called for in the 
request is unlawful in the Requested State (as opposed to 
simply unfamiliar there), the appropriate procedure under the 
law applicable for investigations or proceedings in the 
Requested State will be utilized.
    Paragraph 4 states that a request for assistance need not 
be executed immediately when the Central Authority of the 
Requested State determines that execution would interfere with 
an ongoing investigation or legal proceeding in the Requested 
State. The Central Authority of the Requested State may, in its 
discretion, take such preliminary action as deemed advisable to 
obtain or preserve evidence that might otherwise be lost before 
the conclusion of the investigation or legal proceedings in 
that State. The paragraph also allows the Requested State to 
provide the information sought to the Requesting State subject 
to conditions needed to avoid interference with the Requested 
State's proceedings.
    It is anticipated that some United States requests for 
assistance may contain information which under our law must be 
kept confidential. For example, it may be necessary to set out 
information that is ordinarily protected by Rule 6(e), Federal 
Rules of Criminal Procedure, in the course of an explanation of 
``the subject matter and nature of the investigation, 
prosecution, or proceeding'' as required by Article 4(2)(b). 
Therefore, Paragraph 5 of Article 5 enables the Requesting 
State to call upon the Requested State to keep the information 
in the request confidential. \18\ If the Requested State cannot 
execute the request without disclosing the information in 
question (as might be the case if execution requires a public 
judicial proceeding in the Requested State), or if for some 
other reason this confidentiality cannot be assured, the Treaty 
obliges the Requested State to so indicate, thereby giving the 
Requesting State an opportunity to withdraw the request rather 
than risk jeopardizing an investigation or proceeding by public 
disclosure of the information.
---------------------------------------------------------------------------
    \18\ This provision is similar to language in other United States 
mutual legal assistance treaties. See e.g.,  U.S.-Mexico Mutual Legal 
Assistance Treaty, Dec. 9, 1987, art. 4(5); U.S.-Canada Mutual Legal 
Assistance Treaty, Mar. 18, 1985; art. 6(5), U.S.-Italy Mutual Legal 
Assistance Treaty, Nov. 9, 1982, art. 8(2); U.S.-Philippines Mutual 
Legal Assistance Treaty, supra, note 5, art. 5(5).
---------------------------------------------------------------------------
    Paragraph 6 states that the Central Authority of the 
Requested State shall respond to reasonable inquiries by the 
Requesting State concerning progress of its request. This is to 
encourage open communication between the Central Authorities in 
monitoring the status of specific requests.
    Paragraph 7 requires that the Central Authority of the 
Requested State promptly notify the Central Authority of the 
Requesting State of the outcome of the execution of a request. 
If the assistance sought is not provided, the Central Authority 
of the Requested State must also explain the basis for the 
outcome to the Central Authority of the Requesting State. For 
example, if the evidence sought could not be located, the 
Central Authority of the Requested State would report that fact 
to the Central Authority of the Requesting State.

                            Article 6--Costs

    This article reflects the increasingly accepted 
international rule that each State shall bear the expenses 
incurred within its territory in executing a legal assistance 
treaty request. This is consistent with similar provisions in 
other United States mutual legal assistance treaties. \19\ 
Article 6 states that the Requesting State will pay fees of 
expert witnesses, translation, interpretation and transcription 
costs, and allowances and expenses related to travel of persons 
pursuant to Articles 10 and 11.
---------------------------------------------------------------------------
    \19\ See, e.g., U.S.-Canada Mutual Legal Assistance Treaty, supra 
note 18, art. 8; U.S.-Philippines Mutual Legal Assistance Treaty, supra 
note 5, art. 6.
---------------------------------------------------------------------------

                     Article 7--Limitations on Use

    Paragraph 1 states that the Central Authority of the 
Requested State may require that information provided under the 
Treaty not be used for any purpose other than that stated in 
the request without the prior consent of the Requested State. 
If such confidentiality is requested, the Requesting State must 
comply with the conditions. It will be recalled that Article 
4(2)(d) states that the Requesting State must specify the 
purpose for which the information or evidence sought under the 
Treaty is needed.
    It is not anticipated that the Central Authority of the 
Requested State will routinely request use limitations under 
paragraph 1. Rather, it is expected that such limitations will 
be requested sparingly, only when there is good reason to 
restrict the utilization of the evidence.
    Paragraph 2 states that the Requested State may request 
that the information or evidence it provides to the Requesting 
State be kept confidential. Under most United States mutual 
legal assistance treaties, conditions of confidentiality are 
imposed only when necessary, and are tailored to fit the 
circumstances of each particular case. For instance, the 
Requested State may wish to cooperate with the investigation in 
the Requesting State but choose to limit access to information 
which might endanger the safety of an informant, or unduly 
prejudice the interests of persons not connected in any way 
with the matter being investigated in the Requesting State. 
Paragraph 2 requires that if conditions of confidentiality are 
imposed, the Requesting State need only make ``best efforts'' 
to comply with them. This ``best efforts'' language was used 
because the purpose of the Treaty is the production of evidence 
for use at trial, and that purpose would be frustrated if the 
Requested State could routinely permit the Requesting State to 
see valuable evidence, but impose confidentiality restrictions 
which prevent the Requesting State from using it.
    The Saint Kitts and Nevis delegation expressed particular 
concern that information supplied by Saint Kitts and Nevis in 
response to United States requests must receive real and 
effective confidentiality, and not be disclosed under the 
Freedom of Information Act. Both delegations agreed that since 
this article permits the Requested State to prohibit the 
Requesting State's disclosure of information for any purpose 
other than that stated in the request, a Freedom of Information 
Act request that seeks information that the United States 
obtained under the Treaty would have to be denied if the United 
States received the information on the condition that it be 
kept confidential.
    If the United States Government were to receive evidence 
under the Treaty that seems to be exculpatory to the defendant 
in another case, the United States might be obliged to share 
the evidence with the defendant in the second case. Brady v. 
Maryland, 373 U.S. 83 (1963). Therefore, Paragraph 3 states 
that nothing in Article 7 shall preclude the use or disclosure 
of information to the extent that there is an obligation to do 
so under the Constitution of the Requesting State in a criminal 
prosecution. Any such proposed disclosure shall be notified by 
the Requesting State to the Requested State in advance.
    Paragraph 4 states that once evidence obtained under the 
Treaty has been revealed to the public in accordance with 
paragraphs 1 or 2, the Requesting State is free to use the 
evidence for any purpose. Once evidence obtained under the 
Treaty has been revealed to the public in a trial, that 
information effectively becomes part of the public domain, and 
is likely to become a matter of common knowledge, perhaps even 
be described in the press. The negotiators noted that once this 
has occurred, it is practically impossible for the Central 
Authority of the Requesting Party to block the use of that 
information by third parties.
    It should be noted that under Article 1(4), the 
restrictions outlined in Article 7 are for the benefit of the 
Contracting Parties, and the invocation and enforcement of 
these provisions are left entirely to the Contracting Parties. 
If a person alleges that a Saint Kitts and Nevis authority 
seeks to use information or evidence obtained from the United 
States in a manner inconsistent with this article, the person 
can inform the Central Authority of the United States of the 
allegations for consideration as a matter between the 
Contracting Parties.

        Article 8--Testimony or Evidence in the Requested State

    Paragraph 1 states that a person in the Requested State 
from whom testimony or evidence is sought shall be compelled, 
if necessary, to appear and testify or produce items, including 
documents, records, or articles of evidence. The compulsion 
contemplated by this article can be accomplished by subpoena or 
any other means available under the law of the Requested State.
    Paragraph 2 requires that, upon request, the Requested 
State shall furnish information in advance about the date and 
place of the taking of testimony or evidence.
    Paragraph 3 provides that any persons specified in the 
request, including the defendant and his counsel in criminal 
cases, shall be permitted by the Requested State to be present 
and pose questions during the taking of testimony under this 
article.
    Paragraph 4, when read together with Article 5(3), ensures 
that no person will be compelled to furnish information if he 
has a right not to do so under the law of the Requested State. 
Thus, a witness questioned in the United States pursuant to a 
request from Saint Kitts and Nevis is guaranteed the right to 
invoke any of the testimonial privileges (e.g., attorney 
client, interspousal) available in the United States as well as 
the constitutional privilege against self-incrimination, to the 
extent that it might apply in the context of evidence being 
taken for foreign proceedings. \20\ A witness testifying in 
Saint Kitts and Nevis may raise any of the similar privileges 
available under Saint Kitts and Nevis law.
---------------------------------------------------------------------------
    \20\ This is consistent with the approach taken in Title 28, United 
States Code, Section 1782.
---------------------------------------------------------------------------
    Paragraph 4 does require that if a witness attempts to 
assert a privilege that is unique to the Requesting State, the 
Requested State will take the desired evidence and turn it over 
to the Requesting State along with notice that it was obtained 
over a claim of privilege. The applicability of the privilege 
can then be determined in the Requesting State, where the scope 
of the privilege and the legislative and policy reasons 
underlying the privilege are best understood. A similar 
provision appears in many of our recent mutual legal assistance 
treaties. \21\
---------------------------------------------------------------------------
    \21\ See e.g., U.S.-Netherlands Mutual Legal Assistance Treaty, 
June 12, 1981, art. 5(1), T.I.A.S. No. 10734, 1359 U.N.T.S. 209; U.S.-
Bahamas Mutual Legal Assistance Treaty, June 12 & Aug. 18, 1987, art. 
9(2); U.S.-Mexico Mutual Legal Assistance Treaty, supra note 18, art. 
7(2); U.S.-Philippines Mutual Legal Assistance Treaty, supra note 5, 
art. 8(4).
---------------------------------------------------------------------------
    Paragraph 5 states that evidence produced pursuant to this 
article may be authenticated by an attestation, including, in 
the case of business records, authentication in the manner 
indicated in Form A appended to the Treaty. Thus, the provision 
establishes a procedure for authenticating records in a manner 
essentially similar to Title 18, United States Code, Section 
3505. It is understood that the second and third sentences of 
this paragraph provide for the admissibility of authenticated 
documents as evidence without additional foundation or 
authentication. With respect to the United States, this 
paragraph is self-executing, and does not need implementing 
legislation.
    Article 8(5) provides that the evidence authenticated by 
Form A is ``admissible,'' but of course, it will be up to the 
judicial authority presiding over the trial to determine 
whether the evidence should in fact be admitted. The 
negotiators intended that evidentiary tests other than 
authentication (such as relevance, and materiality) would still 
have to be satisfied in each case.

               Article 9--Records of Government Agencies

    Paragraph 1 obliges each Party to furnish the other with 
copies of publicly available records, including documents or 
information in any form, possessed by a government department 
or agency in the Requested State. The term ``government 
departments and agencies'' includes all executive, judicial, 
and legislative units of the Federal, State, and local level in 
each country.
    Paragraph 2 provides that the Requested State may share 
with its treaty partner copies of nonpublic information in 
government files. The obligation under this provision is 
discretionary, and such requests may be denied in whole or in 
part. Moreover, the article states that the Requested State may 
only exercise its discretion to turn over information in its 
files ``to the same extent and under the same conditions'' as 
it would to its own law enforcement or judicial authorities. It 
is intended that the Central Authority of the Requested State, 
in close consultation with the interested law enforcement 
authorities of that State, will determine that extent and what 
those conditions would be.
    The discretionary nature of this provision was deemed 
necessary because government files in each State contain some 
kinds of information that would be available to investigative 
authorities in that State, but that justifiably would be deemed 
inappropriate to release to a foreign government. For example, 
assistance might be deemed inappropriate where the information 
requested would identify or endanger an informant, prejudice 
sources of information needed in future investigations, or 
reveal information that was given to the Requested State in 
return for a promise that it not be divulged. Of course, a 
request could be denied under this clause if the Requested 
State's law bars disclosure of the information.
    The delegations discussed whether this article should serve 
as a basis for exchange of information in tax matters. It was 
the intention of the United States delegation that the United 
States be able to provide assistance under the Treaty for tax 
offenses, as well as to provide information in the custody of 
the Internal Revenue Service for both tax offenses and non-tax 
offenses under circumstances that such information is available 
to U.S. law enforcement authorities. The United States 
delegation was satisfied after discussion that this Treaty is a 
``convention relating to the exchange of tax information'' for 
purposes of Title 26, United States Code, Section 6103(k)(4), 
and the United States would have the discretion to provide tax 
return information to Saint Kitts and Nevis under this article 
in appropriate cases. \22\
---------------------------------------------------------------------------
    \22\ Thus, this treaty, like all of the other U.S. bilateral mutual 
legal assistance treaties, authorizes the Contracting Parties to 
provide tax return information in appropriate circumstances.
---------------------------------------------------------------------------
    Paragraph 3 states that documents provided under this 
article may be authenticated in accordance with the procedures 
specified in the request, and if authenticated in this manner, 
the evidence shall be admissible in evidence in the Requesting 
State. Thus, the Treaty establishes a procedure for 
authenticating official foreign documents that is consistent 
with Rule 902(3) of the Federal Rules of Evidence and Rule 44, 
Federal Rules of Civil Procedure.
    Paragraph 3, similar to Article 8(5), states that documents 
authenticated under this paragraph shall be ``admissible'' but 
it will, of course, be up to the judicial authority presiding 
over the trial to determine whether the evidence should in fact 
be admitted. The evidentiary tests other than authentication 
(such as relevance or materiality) must be established in each 
case.

             Article 10--Testimony in the Requesting State

    This article provides that upon request, the Requested 
State shall invite persons who are located in its territory to 
travel to the Requesting State to appear before an appropriate 
authority there. It shall notify the Requesting State of the 
invitee's response. An appearance in the Requesting State under 
this article is not mandatory, and the invitation may be 
refused by the prospective witness. The Requesting State would 
be expected to pay the expenses of such an appearance pursuant 
to Article 6 if requested by the person whose appearance is 
sought.
    Paragraph l provides that the person shall be informed of 
the amount and kind of expenses which the Requesting State will 
provide in a particular case. It is assumed that such expenses 
would normally include the costs of transportation, and room 
and board. When the person is to appear in the United States, a 
nominal witness fee would also be provided.
    Paragraph 2 provides that the Central Authority of the 
Requesting State shall inform the Central Authority of the 
Requested State whether any decision has been made that a 
person who is in the Requesting State pursuant to this article 
shall not be subject to service of process, or be detained or 
subjected to any restriction of personal liberty while a person 
is in the Requesting State. Most U.S. mutual legal assistance 
treaties anticipate that the Central Authority will determine 
whether to extend such safe conduct, but under the Treaty with 
Saint Kitts and Nevis, the Central Authority merely reports 
whether safe conduct has been extended. This is because in 
Saint Kitts and Nevis only the Director of Public Prosecutions 
can extend such safe conduct, and the Attorney General (who is 
Central Authority for Saint Kitts and Nevis under Article 3 of 
the Treaty) cannot do so. This ``safe conduct'' is limited to 
acts or convictions that preceded the witness's departure from 
the Requested State. It is understood that this provision would 
not prevent the prosecution of a person for perjury or any 
other crime committed while in the Requesting State.
    Paragraph 3 states that the safe conduct guaranteed in this 
article expires seven days after the Central Authority of the 
Requesting State has notified the Central Authority of the 
Requested State that the person's presence is no longer 
required, or if the person leaves the territory of the 
Requesting State and thereafter returns to it. However, the 
competent authorities of the Requesting State may extend the 
safe conduct up to fifteen days if they determine that there is 
good cause to do so. For the United States, the ``competent 
authorities'' for these purposes would be the Central 
Authority.

               Article 11--Transfer of Persons in Custody

    In some criminal cases, a need arises for the testimony in 
one country of a witness in custody in another country. In some 
instances, foreign countries are willing and able to ``lend'' 
witnesses to the United States Government, provided the 
witnesses would be carefully guarded while in the United States 
and returned to the foreign country at the conclusion of the 
testimony. On occasion, the United States Justice Department 
has arranged for consenting federal inmates in the United 
States to be transported to foreign countries to assist in 
criminal proceedings. \23\
---------------------------------------------------------------------------
    \23\ For example, in September, 1986, the United States Justice 
Department and the United States Drug Enforcement Administration 
arranged for four federal prisoners to be transported to the United 
Kingdom to testify for the Crown in Regina v. Dye, Williamson, Ells, 
Davies, Murphy, and Millard, a major narcotics prosecution in ``the Old 
Bailey'' (Central Criminal Court) in London.
---------------------------------------------------------------------------
    Paragraph 1 provides an express legal basis for cooperation 
in these matters. It is based on Article 26 of the United 
States-Switzerland Mutual Legal Assistance Treaty, \24\ which 
in turn is based on Article 11 of the European Convention on 
Mutual Assistance in Criminal Matters. \25\
---------------------------------------------------------------------------
    \24\ U.S.-Switzerland Mutual Legal Assistance Treaty, supra note 
14, art. 26.
    \25\ See also Title 18, United States Code, Section 3508, which 
provides for the transfer to the United States of witnesses in custody 
in other States whose testimony is needed at a federal criminal trial. 
It is also consistent with Section 24, Mutual Assistance in Criminal 
Matters Act, 1993.
---------------------------------------------------------------------------
    Paragraph 2 provides that a person in the custody of the 
Requested State whose presence in the Requesting State is 
sought for purposes of assistance under this Treaty shall be 
transferred from the Requested State to the Requesting State 
for that purpose if the person consents and if the Central 
Authorities of both States agree. This would also cover 
situations in which a person in custody in the United States on 
a criminal matter has sought permission to travel to another 
country to be present at a deposition being taken there in 
connection with the case. \26\
---------------------------------------------------------------------------
    \26\ See also United States v. King, 552 F.2d 833 (9th Cir. 1976), 
cert. denied, 430 U.S. 966 (1977), where the defendants insisted on 
traveling to Japan to be present at the deposition of certain witnesses 
in prison there.
---------------------------------------------------------------------------
    Paragraph 3 provides express authority for the receiving 
State to maintain such a person in custody throughout the 
person's stay there, unless the sending State specifically 
authorizes release. This paragraph also authorizes the 
receiving State to return the person in custody to the sending 
State, and provides that this return will occur in accordance 
with terms and conditions agreed upon by the Central 
Authorities. The initial transfer of a person under this 
article requires the consent of the person involved and of both 
Central Authorities, but the provision does not require that 
the person consent to be returned to the sending State.
    Once the receiving State has agreed to assist the sending 
State's investigation or proceeding pursuant to this article, 
it would be inappropriate for the receiving State to hold the 
person transferred and require extradition proceedings before 
allowing him to return to the sending State as agreed. 
Therefore, Paragraph (3)(c) contemplates that extradition 
proceedings will not be required before the status quo is 
restored by the return of the person transferred. Paragraph 
(3)(d) states that the person is to receive credit for time 
served while in the custody of the receiving State. This is 
consistent with United States practice in these matters.
    Article 11 does not provide for any specific ``safe 
conduct'' for persons transferred under this article, because 
it is anticipated that the authorities of the two countries 
will deal with such situations on a case-by-case basis. If the 
person in custody is unwilling to be transferred without safe 
conduct, and the Receiving State is unable or unwilling to 
provide satisfactory assurances in this regard, the person is 
free to decline to be transferred.

       Article 12--Location or Identification of Persons or Items

    This article provides for ascertaining the whereabouts in 
the Requested State of persons (such as witnesses, potential 
defendants, or experts) or items if the Requesting State seeks 
such information. This is a standard provision contained in all 
United States mutual legal assistance treaties. The Treaty 
requires only that the Requested State make ``best efforts'' to 
locate the persons or items sought by the Requesting State. 
\27\ The extent of such efforts will vary, of course, depending 
on the quality and extent of the information provided by the 
Requesting State concerning the suspected location and last 
known location.
---------------------------------------------------------------------------
    \27\ This is consistent with Section 2, Mutual Assistance in 
Criminal Matters Act, 1993.
---------------------------------------------------------------------------
    The obligation to locate persons or items is limited to 
persons or items that are or may be in the territory of the 
Requested State. Thus, the United States would not be obliged 
to attempt to locate persons or items which may be in third 
countries. In all cases, the Requesting State would be expected 
to supply all available information about the last known 
location of the persons or items sought.

                    Article 13--Service of Documents

    This article creates an obligation on the Requested State 
to use its best efforts to effect the service of documents such 
as summons, complaints, subpoenas, or other legal papers 
relating in whole or in part to a Treaty request. This is 
consistent with Saint Kitts and Nevis law, \28\ and identical 
provisions appear in several U.S. mutual legal assistance 
treaties.
---------------------------------------------------------------------------
    \28\ Section 25, Mutual Assistance in Criminal Matters Act, 1993.
---------------------------------------------------------------------------
    It is expected that when the United States is the Requested 
State, service under the Treaty will be made by registered mail 
(in the absence of any request by Saint Kitts and Nevis to 
follow a specified procedure for service) or by the United 
States Marshal's Service in instances in which personal service 
is requested.
    Paragraph 2 provides that when the documents to be served 
call for the appearance of a person in the Requesting State, 
the documents should be received by the Central Authority of 
the Requested State a reasonable time before the date set for 
any such appearance.
    Paragraph 3 requires that proof of service be returned to 
the Requesting State in the manner specified in the request.

                     Article 14--Search and Seizure

    It is sometimes in the interests of justice for one State 
to ask another to search for, secure, and deliver articles or 
objects needed in the former as evidence or for other purposes. 
United States courts can and do execute such requests under 
Title 28, United States Code, Section 1782. \29\ This article 
creates a formal framework for handling such requests.
---------------------------------------------------------------------------
    \29\ See e.g., United States ex Rel. Public Prosecutor of 
Rotterdam, Netherlands v. Van Aalst, Case No 84-52-M-01 (M.D. Fla., 
Orlando Div.)(search warrant issued February 24, 1984). The courts of 
Saint Kitts and Nevis also have the power to execute such requests 
under Section 22, Mutual Assistance in Criminal Matters Act, 1993.
---------------------------------------------------------------------------
    Article 14 requires that the search and seizure request 
include ``information justifying such action under the laws of 
the Requested State.'' This means that normally a request to 
the United States from Saint Kitts and Nevis will have to be 
supported by a showing of probable cause for the search. A 
United States request to Saint Kitts and Nevis would have to 
satisfy the corresponding evidentiary standard there, which is 
``a reasonable basis to believe'' that the specified premises 
contains articles likely to be evidence of the commission of an 
offense.
    Paragraph 2 is designed to ensure that a record is kept of 
articles seized and of articles delivered up under the Treaty. 
This provision effectively requires that, upon request, every 
official who has custody of a seized item shall certify, 
through the use of Form C appended to this Treaty, the 
continuity of custody, the identity of the item, and the 
integrity of its condition.
    The article also provides that the certificates describing 
continuity of custody will be admissible without additional 
authentication at trial in the Requesting State, thus relieving 
the Requesting State of the burden, expense, and inconvenience 
of having to send its law enforcement officers to the Requested 
State to provided authentication and chain of custody testimony 
each time the Requesting State uses evidence produced under 
this article. As in Articles 8(5) and 9(3), the injunction that 
the certificates be admissible without additional 
authentication leaves the trier of fact free to bar use of the 
evidence itself, in spite of the certificate, if there is some 
reason to do so other than authenticity or chain of custody.
    Paragraph 3 states that the Requested State may require 
that the Requesting State agree to terms and conditions 
necessary to protect the interests of third parties in the item 
to be transferred. This article is similar to provisions in 
many other United States mutual legal assistance treaties. \30\
---------------------------------------------------------------------------
    \30\ See e.g., U.S.-Argentina Mutual Legal Assistance Treaty, supra 
note 5; U.S.-Bahamas Mutual Legal Assistance Treaty, supra note 21; 
U.S.-Canada Mutual Legal Assistance Treaty, supra note 18; U.S.-U.K. 
Mutual Legal Assistance Treaty Concerning the Cayman Islands, Jul. 3, 
1986; U.S.-Hungary Mutual Legal Assistance Treaty, Dec. 1, 1994; U.S.-
Korea Mutual Legal Assistance Treaty, Nov. 23, 1993; U.S.-Panama Mutual 
Legal Assistance Treaty, Apr. 11, 1991; U.S.-Philippines Mutual Legal 
Assistance Treaty, supra note 5; U.S.-Spain Mutual Legal Assistance 
Treaty, Nov. 20, 1990; U.S.-United Kingdom Mutual Legal Assistance 
Treaty, Jan. 6, 1994.
---------------------------------------------------------------------------

                      Article 15--Return of Items

    This article provides that any documents or items of 
evidence furnished under the Treaty must be returned to the 
Requested State as soon as possible. The delegation understood 
that this requirement would be invoked only if the Central 
Authority of the Requested State specifically requests it at 
the time that the items are delivered to the Requesting State. 
It is anticipated that unless original records or articles of 
significant intrinsic value are involved, the Requested State 
will not usually request return of the items, but this is a 
matter best left to development of practice.

            Article 16--Assistance in Forfeiture Proceedings

    A major goal of the Treaty is to enhance the efforts of 
both the United States and Saint Kitts and Nevis in combating 
narcotics trafficking. One significant strategy in this effort 
is action by United States authorities to seize and confiscate 
money, property, and other proceeds of drug trafficking.
    This article is similar to a number of United States mutual 
legal assistance treaties, including Article 17 in the U.S.-
Canada Mutual Legal Assistance Treaty and Article 15 of the 
U.S.-Thailand Mutual Legal Assistance Treaty. Paragraph 1 
authorizes the Central Authority of one State to notify the 
other of the existence in the latter's territory of proceeds or 
instrumentalities of offenses that may be forfeitable or 
otherwise subject to seizure. The term ``proceeds or 
instrumentalities'' was intended to include things such as 
money, vessels, or other valuables either used in the crime or 
purchased or obtained as a result of the crime.
    Upon receipt of notice under this article, the Central 
Authority of the State in which the proceeds or 
instrumentalities are located may take whatever action is 
appropriate under its law. For instance, if the assets in 
question are located in the United States and were obtained as 
a result of a fraud in Saint Kitts and Nevis, they could be 
seized under 18 U.S.C. 981 in aid of a prosecution under Title 
18, United States Code, Section 2314, \31\ or be subject to a 
temporary restraining order in anticipation of a civil action 
for the return of the assets to the lawful owner. Proceeds of a 
foreign kidnapping, robbery, extortion or a fraud by or against 
a foreign bank are civilly and criminally forfeitable in the 
U.S. since these offenses are predicate offenses under U.S. 
money laundering laws. \32\ Thus, it is a violation of United 
States criminal law to launder the proceeds of these foreign 
fraud or theft offenses, when such proceeds are brought into 
the United States.
---------------------------------------------------------------------------
    \31\ This statute makes it an offense to transport money or 
valuables in interstate or foreign commerce knowing that they were 
obtained by fraud in the United States or abroad.
    \32\ Title 18, United States Code, Section 1956(c)(7)(B).
---------------------------------------------------------------------------
    If the assets are the proceeds of drug trafficking, it is 
especially likely that the Contracting Parties will be willing 
and able to help one another. Title 18, United States Code, 
Section 981(a)(1)(B), allows for the forfeiture to the United 
States of property ``which represents the proceeds of an 
offense against a foreign nation involving the manufacture, 
importation, sale, or distribution of a controlled substance 
(as such term is defined for the purposes of the Controlled 
Substance Act) within whose jurisdiction such offense or 
activity would be punishable by death or imprisonment for a 
term exceeding one year if such act or activity had occurred 
within the jurisdiction of the United States.'' This is 
consistent with the laws in other countries, such as 
Switzerland and Canada; there is a growing trend among nations 
toward enacting legislation of this kind in the battle against 
narcotics trafficking. \33\ The United States delegation 
expects that Article 16 of the Treaty will enable this 
legislation to be even more effective.
---------------------------------------------------------------------------
    \33\ Article 5 of the United Nations Convention Against Illicit 
Traffic in Narcotic Drugs and Psychotropic Substances, calls for the 
States that are party to enact legislation to forfeit illicit drug 
proceeds and to assist one another in such matters. United Nations 
Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic 
Substances, with annex and final act, done at Vienna, Dec. 20, 1988.
---------------------------------------------------------------------------
    Paragraph 2 states that the Parties shall assist one 
another to the extent permitted by their laws in proceedings 
relating to the forfeiture of the proceeds or instrumentalities 
of offenses, to restitution to crime victims, or to the 
collection of fines imposed as sentences in criminal 
convictions. It specifically recognizes that the authorities in 
the Requested State may take immediate action to temporarily 
immobilize the assets pending further proceedings. Thus, if the 
law of the Requested State enables it to seize assets in aid of 
a proceeding in the Requesting State or to enforce a judgment 
of forfeiture levied in the Requesting State, the Treaty 
provides that the Requested State shall do so. The language of 
the article is carefully selected, however, so as not to 
require either State to take any action that would exceed its 
internal legal authority. It does not mandate institution of 
forfeiture proceedings or initiation of temporary 
immobilization in either country against property identified by 
the other if the relevant prosecution authorities do not deem 
it proper to do so. \34\
---------------------------------------------------------------------------
    \34\ In Saint Kitts and Nevis, unlike the U.S., the law does not 
currently allow for civil forfeiture. However, Saint Kitts and Nevis 
law currently does permit forfeiture in criminal cases, and ordinarily 
a defendant must be convicted in order for the Government of Saint 
Kitts and Nevis to confiscate the defendant's property.
---------------------------------------------------------------------------
    United States law permits the government to transfer a 
share of certain forfeited property to other countries that 
participate directly or indirectly in the seizure or forfeiture 
of the property. Under regulations promulgated by the Attorney 
General, the amount transferred generally reflects the 
contribution of the foreign government in law enforcement 
activity which led to the seizure and forfeiture of the 
property. The law requires that the transfer be authorized by 
an international agreement between the United States and the 
foreign country, and be approved by the Secretary of State. 
\35\ Paragraph 3 is consistent with this framework, and will 
enable a Contracting Party having custody over proceeds or 
instrumentalities of offenses to transfer forfeited assets, or 
the proceeds of the sale of such assets, to the other 
Contracting Party, at the former's discretion and to the extent 
permitted by their respective laws.
---------------------------------------------------------------------------
    \35\ See Title 18, United States Code, Section 981 (i)(1).
---------------------------------------------------------------------------

           Article 17--Compatibility with Other Arrangements

    This article states that assistance and procedures provided 
by this Treaty shall not prevent assistance under any other 
applicable international agreements. Article 17 also provides 
that the Treaty shall not be deemed to prevent recourse to any 
assistance available under the internal laws of either country. 
Thus, the Treaty would leave the provisions of United States 
and Saint Kitts and Nevis law on letters rogatory completely 
undisturbed, and would not alter any pre-existing agreements 
concerning investigative assistance.

                        Article 18--Consultation

    Experience has shown that as the parties to a treaty of 
this kind work together over the years, they become aware of 
various practical ways to make the treaty more effective and 
their own efforts more efficient. This article anticipates that 
the Contracting Parties will share those ideas with one 
another, and encourages them to agree on the implementation of 
such measures. Practical measures of this kind might include 
methods of keeping each other informed of the progress of 
investigations and cases in which treaty assistance was 
utilized, or the use of the Treaty to obtain evidence that 
otherwise might be sought via methods less acceptable to the 
Requested State. Very similar provisions are contained in 
recent United States mutual legal assistance treaties. \36\ It 
is anticipated that the Central Authorities will conduct annual 
consultations pursuant to this article.
---------------------------------------------------------------------------
    \36\ See, e.g.,  U.S.-Philippines Mutual Legal Assistance Treaty, 
supra note 5, art. 18; U.S.-Canada Mutual Legal Assistance Treaty, 
supra note 18, art. XVIII; U.S.-U.K. Mutual Legal Assistance Treaty 
Concerning the Cayman Islands, supra note 30, art. 18; U.S.-Argentina 
Mutual Legal Assistance Treaty, supra note 5, art. 18.
---------------------------------------------------------------------------

      Article 19--Ratification, Entry Into Force, and Termination

    Paragraph 1 contains standard provisions on the procedure 
for ratification and the exchange of the instruments of 
ratification
    Paragraph 2 provides that the Treaty shall enter into force 
immediately upon the exchange of instruments of ratification.
    Paragraph 3 provides that the Treaty shall apply to any 
request presented pursuant to it after it enters into force, 
even if the relevant acts or omissions occurred before the date 
on which the Treaty entered into force. Provisions of this kind 
are common in law enforcement agreements.
    Paragraph 4 contains standard provisions concerning the 
procedure for terminating the Treaty. Termination shall take 
effect six months after the date of written notification. 
Similar termination provisions are included in other United 
States mutual legal assistance treaties.

 Technical Analysis of The Treaty Between The United States of America 
   and The Republic of Latvia on Mutual Legal Assistance in Criminal 
                                Matters

    On June 13, 1997, the United States signed a treaty with 
Latvia on Mutual Legal Assistance in Criminal Matters (``the 
Treaty''). In recent years, the United States has signed 
similar mutual legal assistance treaties with a number of 
countries as part of a highly successful effort to modernize 
the legal tools available to law enforcement authorities in 
need of foreign evidence for use in criminal cases.
    The Treaty with Latvia is the first mutual legal assistance 
treaty we have signed with a former Soviet republic, and it is 
expected to be a valuable weapon for the United States in its 
efforts to combat transnational terrorism, international drug 
trafficking, and Russian organized crime.
    It is anticipated that the Treaty will be implemented in 
the United States pursuant to the procedural framework provided 
by Title 28, United States Code, Section 1782. Latvia has no 
mutual legal assistance legislation at the present time, but 
Latvia's delegation gave assurances that the Treaty would be 
implemented in Latvia without such legislation. The U.S. 
delegation was told that under Latvian jurisprudence, the terms 
of the Treaty would take precedence over silence in Latvian 
domestic law, and, in case of a conflict between the Treaty and 
future Latvian domestic law, the Treaty would control.
    The following technical analysis of the Treaty was prepared 
by the Office of International Affairs, United States 
Department of Justice, and the Office of the Legal Adviser, 
United States Department of State, based upon the negotiating 
notes. The technical analysis includes a discussion of U.S. law 
and relevant practice as of the date of its preparation, which 
are, of course, subject to change. Foreign law discussions 
reflect the current state of that law, to the best of the 
drafters' knowledge.

                     Article 1--Scope of Assistance

    Paragraph 1 requires the Parties to provide mutual 
assistance in connection with the investigation, prosecution, 
and prevention of offenses, and in proceedings relating to 
criminal matters.
    The negotiators specifically agreed that the term 
``investigations'' includes grand jury proceedings in the 
United States and similar pre-charge proceedings in Latvia, and 
other legal measures taken prior to the filing of formal 
charges in either State. \1\ The term ``proceedings'' was 
intended to cover the full range of proceedings in a criminal 
case, including such matters as bail and sentencing hearings. 
\2\ It was also agreed that since the phrase ``proceedings 
related to criminal matters'' is broader than the 
investigation, prosecution or sentencing process itself, 
proceedings covered by the Treaty need not be strictly criminal 
in nature. For example, proceedings to forfeit to the 
government the proceeds of illegal drug trafficking may be 
civil in nature; \3\ yet such proceedings are covered by the 
Treaty.
---------------------------------------------------------------------------
    \1\ The requirement that assistance be provided under the Treaty at 
the pre-indictment stage is critical to the U.S., as our investigators 
and prosecutors often need to obtain evidence from foreign countries in 
order to determine whether or not to file criminal charges. This 
obligation is a reciprocal one; the U.S. must assist Latvia under the 
Treaty in connection with investigations prior to charges being filed 
in Latvia. Prior to the 1996 amendments of Title 28, United States 
Code, Section 1782, some U.S. courts had interpreted that Section to 
require that assistance be provided in criminal matters only if formal 
charges have already been filed abroad, or are ``imminent,'' or ``very 
likely.'' McCarthy, ``A Proposed Uniform Standard for U.S. Courts in 
Granting Requests for International Judicial Assistance,'' 15 Fordham 
Int'l Law J. 772 (1991). The 1996 amendment eliminates this problem, 
however, by amending subsec. (a) to state ``including criminal 
investigation conducted before formal accusation.'' In any event, this 
Treaty was intentionally written to cover criminal investigations that 
have just begun as well as those that are nearly completed; it draws no 
distinction between cases in which charges are already pending, 
``imminent,'' ``very likely,'' or ``very likely very soon.'' Thus, U.S. 
courts should execute requests under the Treaty without examining such 
factors.
    \2\ One United States court has interpreted Title 28, United States 
Code, Section 1782, as permitting the execution of a request for 
assistance from a foreign country only if the evidence sought is for 
use in proceedings before an adjudicatory ``tribunal'' in the foreign 
country. In Re Letters Rogatory Issued by the Director of Inspection of 
the Gov't of India, 385 F.2d 1017 (2d Cir. 1967); Fonseca v. 
Blumenthal, 620 F.2d 322 (2d Cir. 1980). This rule poses an unnecessary 
obstacle to the execution of requests concerning matters which are at 
the investigatory stage, or which are customarily handled by 
administrative officials in the Requesting State. Since this paragraph 
of the Treaty specifically permits requests to be made in connection 
with matters not within the jurisdiction of an adjudicatory 
``tribunal'' in the Requesting State, this paragraph accords the courts 
broader authority to execute requests than does Title 28, United States 
Code, Section 1782, as interpreted in the India and Fonseca cases.
    \3\ See 21 U.S.C. Sec.  881; 18 U.S.C. Sec.  1964.
---------------------------------------------------------------------------
    Paragraph 2 lists the major types of assistance 
specifically considered by the Treaty negotiators. Most of the 
items listed in the paragraph are described in detail in 
subsequent articles. The list is not intended to be exhaustive, 
a fact that is signaled by the word ``include'' in the opening 
clause of the paragraph and reinforced by the final 
subparagraph.
    Many law enforcement treaties, especially in the area of 
extradition, condition cooperation upon a showing of ``dual 
criminality'', i.e., proof that the facts underlying the 
offense charged in the Requesting State would also constitute 
an offense had they occurred in the Requested State. Paragraph 
3 makes it clear that there is no general requirement of dual 
criminality for cooperation. Thus, assistance may be provided 
even when the criminal matter under investigation in the 
Requesting State would not be a crime in the Requested State. 
Article 1(3) is important because United States and Latvian 
criminal law differ, and a general dual criminality rule would 
make assistance unavailable in significant areas. This type of 
limited dual criminality provision is found in other U.S. 
mutual legal assistance treaties. \4\ During the negotiations, 
the United States delegation received assurances that 
assistance would be available under the Treaty to the United 
States in investigations of such offenses as conspiracy; drug 
trafficking, including continuing criminal enterprise (Title 
21, United States Code, Section 848); offenses under the 
racketeering statutes (Title 18, United States Code, Section 
1961-1968); money laundering; terrorism; tax crimes, including 
tax evasion and tax fraud; crimes against environmental 
protection laws; antitrust violations; and alien smuggling.
---------------------------------------------------------------------------
    \4\ See e.g.,  U.S.-Argentina Treaty on Mutual Legal Assistance in 
Criminal Matters, Dec. 4, 1990, art. 1(3); U.S.-Philippines Treaty on 
Mutual Legal Assistance in Criminal Matters, Nov. 13, 1994, art. 1(3).
---------------------------------------------------------------------------
    Paragraph 4 contains a standard provision in United States 
Mutual legal assistance treaties \5\ that states that the 
Treaty is intended solely for government-to-government mutual 
legal assistance. The Treaty is not intended to provide to 
private persons a means of evidence gathering, or to extend 
generally to civil matters. Private litigants in the United 
States may continue to obtain evidence from Latvia by letters 
rogatory, an avenue of international assistance that the Treaty 
leaves undisturbed. Similarly, the paragraph provides that the 
Treaty is not intended to create any right in a private person 
to suppress or exclude evidence provided pursuant to the 
Treaty.
---------------------------------------------------------------------------
    \5\ See United States v. Johnpoll, 739 F.2d 702 (2d Cir. 1984), 
cert. denied, 469 U.S. 1075 (1984).
---------------------------------------------------------------------------

                     Article 2--Central Authorities

    This article requires that each Party establish a ``Central 
Authority'' for transmission, receipt, and handling of Treaty 
requests. The Central Authority of the United States would make 
all requests to Latvia on behalf of federal, state, and local 
prosecutors, agencies, and other law enforcement authorities in 
the United States. The Latvia Central Authority would make all 
requests emanating from officials in Latvia.
    The Central Authority for the Requesting State will 
exercise discretion as to the form and content of requests, and 
the number and priority of requests. The Central Authority of 
the Requested State is also responsible for receiving each 
request, transmitting it to the appropriate federal or state 
agency, court, or other authority for execution, and ensuring 
that a timely response is made.
    Paragraph 2 provides that the Attorney General or a person 
designated by the Attorney General will be the Central 
Authority for the United States. The Attorney General has 
delegated the authority to handle the duties of Central 
Authority under Mutual legal assistance treaties to the 
Assistant Attorney General in charge of the Criminal Division. 
\6\ Article 2(2) of the Treaty also states that the Prosecutor 
General of Latvia or a person designated by the Prosecutor 
General shall serve as the Central Authority for Latvia.
---------------------------------------------------------------------------
    \6\ 28 C.F.R. Sec.  0.64-1. The Assistant Attorney General for the 
Criminal Division has in turn delegated this authority to the Deputy 
Assistant Attorneys General and the Director of the Criminal Division's 
Office of International Affairs, in accordance with the regulation. 
Directive No. 81, 45 Fed. Reg. 79,758 (1980), as corrected at 48 Fed. 
Reg. 54,595 (1983). That delegation was subsequently extended to the 
Deputy Directors of the Office of International Affairs. 59 Fed. Reg. 
42,160 (1994).
---------------------------------------------------------------------------
    Paragraph 3 states that the Central Authorities shall 
communicate directly with one another for the purposes of the 
Treaty. It is anticipated that such communication will be 
accomplished by telephone, telefax, or any other means, at the 
option of the Central Authorities themselves.

                  Article 3--Limitations on Assistance

    This article specifies the limited classes of cases in 
which assistance may be denied under the Treaty.
    Paragraph 1(a) permits the Requested State to deny a 
request if a request involves an offense under military law 
that would not be an offense under ordinary criminal law.
    Paragraph (1)(b) permits denial of a request if it involves 
a political offense. It is anticipated that the Central 
Authorities will employ jurisprudence similar to that used in 
the extradition treaties for determining what is a ``political 
offense.'' These restrictions are similar to those found in 
other Mutual legal assistance treaties.
    Paragraph (1)(c) permits the Central Authority of the 
Requested State to deny a request if execution of the request 
would prejudice the security or similar essential interests of 
that State. All United States mutual legal assistance treaties 
contain provisions allowing the Requested State to decline to 
execute a request if execution would prejudice its essential 
interests.
    The delegations agreed that the word ``security'' would 
include cases where assistance might involve disclosure of 
information that is classified for national security reasons. 
It is anticipated that the Department of Justice, in its role 
as Central Authority for the United States, would work closely 
with the Department of State and other Government agencies to 
determine whether to execute a request that falls into this 
category.
    The delegations agreed that the phrase ``essential 
interests'' is intended to limit narrowly the class of cases in 
which assistance may be denied. It is not enough that the 
Requesting State's case is one that would be inconsistent with 
public policy had it been brought in the Requested State. 
Rather, the Requested State must be convinced that execution of 
the request would seriously conflict with significant public 
policy. An example is a request involving prosecution by the 
Requesting State of conduct that occurred in the Requested 
State that is constitutionally protected in the Requested 
State.
    It was agreed that ``essential interests'' may include 
interests unrelated to national military or political security, 
and may be invoked if the execution of a request would violate 
essential United States interests related to the fundamental 
purposes of the Treaty. For example, one fundamental purpose of 
the Treaty is to enhance law enforcement cooperation. The 
attainment of that goal would be hampered if sensitive law 
enforcement information available under the Treaty were to fall 
into the wrong hands. Accordingly, the United States Central 
Authority may invoke paragraph 1(c) to decline to provide 
sensitive or confidential drug-related information pursuant to 
a Treaty request whenever it determines, after appropriate 
consultation with law enforcement, intelligence, and foreign 
policy agencies, that a senior foreign government official who 
likely will have access to the information is engaged in or 
facilitates the production or distribution of illegal drugs, 
and is using the request to the prejudice of a United States 
investigation or prosecution. \7\
---------------------------------------------------------------------------
    \7\ This is consistent with the Senate resolution of advice and 
consent to ratification, e.g., of the mutual legal assistance treaties 
with Mexico, Canada, Belgium, Thailand, the Bahamas, and the United 
Kingdom Concerning the Cayman Islands. Cong. Rec. 13884 (1989) (treaty 
citations omitted). See also Staff of Senate Comm. on Foreign 
Relations, 100th Cong., 2d Sess., Mutual Legal Assistance Treaty 
Concerning the Cayman Islands 67 (1988) (testimony of Mark M. Richard, 
Deputy Assistant Attorney General, Criminal Division, Department of 
Justice).
---------------------------------------------------------------------------
    Paragraph (1)(d) permits the denial of a request if it was 
not made in conformity with the Treaty.
    Paragraph 2 is similar to paragraph 2 of the United States-
Switzerland Mutual Legal Assistance Treaty, \8\ and obliges the 
Requested State to consider imposing appropriate conditions on 
its assistance in lieu of denying a request outright pursuant 
to paragraph 1. For example, a Party might request information 
that could be used either in a routine criminal case (which is 
within the scope of the Treaty) or in a political prosecution 
(which is subject to refusal). This paragraph permits the 
Requested State to provide the information on condition that it 
be used only in the routine criminal case. Naturally, the 
Requested State should notify the Requesting State of any 
proposed conditions before actually delivering the evidence in 
question, thereby according the Requesting State an opportunity 
to indicate whether it is willing to accept the evidence 
subject to the conditions. If the Requesting State does accept 
the evidence subject to the conditions, it must honor the 
conditions.
---------------------------------------------------------------------------
    \8\ U.S.-Switzerland Mutual Legal Assistance Treaty, May 25, 1973, 
art. 26, 27 U.S.T. 2019, T.I.A.S. No. 8302, 1052 U.N.T.S. 61.
---------------------------------------------------------------------------
    Paragraph 3 effectively requires that the Central Authority 
of the Requested State promptly notify the Central Authority of 
the Requesting State of any reasons for denying assistance. 
This ensures that, when a request is only partly executed, the 
Requested State will provide some explanation for not providing 
all of the information or evidence sought. This should avoid 
misunderstandings and enable the Requesting State to prepare 
future requests better.

                Article 4--Form and Contents of Requests

    Paragraph 1 requires that requests be in writing, except 
that the Central Authority of the Requested State may accept a 
request in another form in ``urgent situations.'' A request in 
another form must be confirmed in writing within ten days 
unless the Central Authority of the Requested State agrees 
otherwise.
    Paragraph 2 lists the four kinds of information deemed 
crucial to the efficient operation of the Treaty which must be 
included in each request. Paragraph 3 outlines kinds of 
information that are important but not always crucial, and 
should be provided ``to the extent necessary and possible.'' In 
keeping with the intention of the Parties that requests be as 
simple and straightforward as possible, there is no requirement 
under the Treaty that a request be legalized or certified in 
any particular manner.

                    Article 5--Execution of Requests

    Paragraph 1 requires each Central Authority promptly to 
execute requests. The negotiators intended that the Central 
Authority, upon receiving a request, will first review the 
request, then promptly notify the Central Authority of the 
Requesting State if the request does not appear to comply with 
the Treaty's terms. If the request does satisfy the Treaty's 
requirements and the assistance sought can be provided by the 
Central Authority itself, the request will be fulfilled 
immediately. If the request meets the Treaty's requirements but 
its execution requires action by some other entity in the 
Requested State, the Central Authority will promptly transmit 
the request to the correct entity for execution.
    When the United States is the Requested State, it is 
anticipated that the Central Authority will transmit most 
requests to federal investigators, prosecutors, or judicial 
officials for execution if the Central Authority deems it 
appropriate to do so.
    Paragraph 1 further authorizes and requires the federal, 
state, or local agency or authority selected by the Central 
Authority to do everything within its power and take whatever 
action would be necessary to execute the request. This 
provision is not intended or understood to authorize the use of 
the grand jury in the United States for the collection of 
evidence pursuant to a request from Latvia. Rather, it is 
anticipated that when a request from Latvia requires compulsory 
process for execution, the Department of Justice would utilize 
Title 28, United States Code, Section 1782, to ask a federal 
court to issue the necessary process. This paragraph of the 
Treaty specifically authorizes United States courts to use all 
of their powers to issue subpoenas and other process to satisfy 
a request under the Treaty.
    The third sentence in Article 5(1) reads ``[t]he courts or 
other competent authorities of the Requested State shall have 
authority to issue subpoenas, search warrants, or other orders 
necessary to execute the request.'' This language reflects an 
understanding that the Parties intend to provide each other 
with every available form of assistance from judicial and 
executive branches of government in the execution of mutual 
assistance requests. The phrase refers to ``courts or other 
competent authorities'' to include all those officials 
authorized to issue compulsory process that might be needed in 
executing a request. For example, in Latvia, justices of the 
peace and senior police officers are empowered to issue certain 
kinds of compulsory process under certain circumstances.
    Paragraph 2 states that the Central Authority of the 
Requested State shall represent or make arrangements for 
representing the Requesting State in any proceedings in the 
Requested State arising out of the request for assistance. 
Thus, it is understood that if execution of the request entails 
action by a judicial or administrative agency, the Central 
Authority of the Requested State will arrange for the 
presentation of the request to that court or agency for the 
benefit of the Requesting State.
    Paragraph 3 provides that requests shall be executed in 
accordance with the laws of the Requested State except to the 
extent that this Treaty provides otherwise. Thus, for example, 
the provision in Article 8(4) that claims of privilege under 
the law of the Requesting State are to be referred back to the 
Requesting State for resolution would take precedence over a 
contrary provision in domestic law. To illustrate, 28 U.S.C. 
1782 permits, as a basis for not compelling testimony or 
production of evidence, deference to privileges legally 
applicable in a Requesting State. To the extent that this 
provision were considered to be in conflict with the Treaty, 
the Treaty provision would prevail.
    The paragraph also provides that the method of executing a 
request for assistance under the Treaty shall be followed 
``except insofar as prohibited by the laws of the Requested 
State.'' Both delegations agreed that the Treaty's primary goal 
of enhancing law enforcement in the Requesting State could be 
frustrated if the Requested State were to insist on producing 
evidence in a manner that renders the evidence inadmissible or 
less persuasive in the Requesting State. For this reason, the 
Requested State must follow the procedure outlined in the 
request to the extent that it can, even if the procedure is not 
that usually employed in its own proceedings (e.g., use of 
videotape depositions). However, if the procedure called for in 
the request is unlawful in the Requested State (as opposed to 
simply unfamiliar there), the appropriate procedure under the 
law applicable for investigations or proceedings in the 
Requested State will be utilized.
    Paragraph 4 states that a request for assistance need not 
be executed immediately when the Central Authority of the 
Requested State determines that execution would interfere with 
an ongoing criminal investigation or proceeding in the 
Requested State. The Central Authority of the Requested State 
may, in its discretion, take such preliminary action as deemed 
advisable to obtain or preserve evidence that might otherwise 
be lost before the conclusion of the investigation or 
proceeding in that State. The paragraph also allows the 
Requested State to provide the information sought to the 
Requesting State subject to conditions needed to avoid 
interference with the Requested State's investigation or 
proceeding.
    It is anticipated that some United States requests for 
assistance may contain information that is kept confidential 
under our law or practice. For example, it may be necessary to 
disclose information that is ordinarily protected by Rule 6(e), 
Federal Rules of Criminal Procedure, in the course of 
describing ``the subject matter and nature of the 
investigation, prosecution, or proceeding'' as required by 
Article 4(2)(b). Paragraph 5 enables the Requesting State to 
call upon the Requested State to keep the information in the 
request confidential. \9\ If the Requested State cannot execute 
the request without disclosing the information in question (as 
might be the situation if execution requires a public judicial 
proceeding in the Requested State), or if for some other reason 
this confidentiality cannot be assured, the Treaty obliges the 
Requested State to so notify the Requesting State to provide an 
opportunity for it to withdraw the request rather than risk 
jeopardizing an investigation or proceeding by public 
disclosure of the information.
---------------------------------------------------------------------------
    \9\ This provision is similar to language in other United States 
mutual legal assistance treaties. See e.g.,  U.S.-Mexico Mutual Legal 
Assistance Treaty, Dec. 9, 1987, art. 4(5); U.S.-Canada Mutual Legal 
Assistance Treaty, Mar. 18, 1985; art. 6(5), U.S.-Italy Mutual Legal 
Assistance Treaty, Nov. 9, 1982, art. 8(2); US.-Philippines Mutual 
Legal Assistance Treaty, supra, note 4, art. 5(5).
---------------------------------------------------------------------------
    Paragraph 6 states that the Central Authority of the 
Requested State shall respond to reasonable inquiries by the 
Requesting State concerning progress of its request. This is to 
encourage open communication between the Central Authorities in 
monitoring the status of specific requests.
    Paragraph 7 requires the Central Authority of the Requested 
State to promptly notify the Central Authority of the 
Requesting State of the outcome of the execution of a request. 
If the assistance sought is not provided, the Central Authority 
of the Requested State must explain the reason. For example, if 
evidence sought could not be located, the Central Authority of 
the Requested State would report that fact to the Central 
Authority of the Requesting State.

                            Article 6--Costs

    This article obligates the Requested State to pay all costs 
relating to the execution of a request, with the exception of 
those costs enumerated in the article: (1) the fees of experts, 
including expert witnesses, unless both Central Authorities 
otherwise agree; (2) interpretation, translation and 
transcription costs; and (3) allowances and expenses related to 
travel of persons who either are traveling in the Requested 
State for the convenience of the Requesting State, or are 
traveling pursuant to Articles 10 and 11.
    Costs ``relating to'' execution means the costs normally 
incurred in transmitting a request to the executing authority, 
notifying witnesses and arranging for their appearances, 
producing copies of the evidence, conducting a proceeding to 
compel execution of the request, etc. The negotiators agreed 
that the costs ``relating to'' execution that must be borne by 
the Requested State do not include expenses associated with the 
travel of investigators, prosecutors, counsel for the defense, 
or judicial authorities to, for example, question a witness or 
take a deposition in the Requested State pursuant to Article 
8(3), or travel in connection with Articles 10 and 11.

                     Article 7--Limitations on Use

    Article 4(2)(d) states that the Requesting State must 
specify the purpose for which the information or evidence 
sought under the Treaty is needed. Paragraph 1 of this article 
states that the Central Authority of the Requested State may 
require that the information or evidence provided not be used 
for any purpose other than that stated in the request without 
the prior consent of the Requested State. If such a use 
limitation is requested, the Requesting State must comply with 
the requirement.
    Both delegations agreed that the Central Authority of the 
Requested State will not routinely require subsequent use 
limitations under paragraph 1. Rather, it is expected that such 
limitations will be imposed sparingly, only when there is good 
reason to restrict use of the evidence for a purpose not 
specified in the request.
    Paragraph 2 authorizes the Requested State to request that 
the information or evidence it provides to the Requesting State 
be kept confidential. This paragraph operates in situations 
outside Article 3 where the Requested State has no basis to 
deny or limit assistance. For instance, the Requested State may 
wish to cooperate with the investigation in the Requesting 
State but to limit disclosure of information that would unduly 
prejudice the interests of persons not connected with the 
matter being investigated. Paragraph 2 permits the request for 
confidentiality. If the Requesting State accepts the assistance 
with this condition, it is required to make ``best efforts'' to 
comply with it. This ``best efforts'' language was used because 
the purpose of the Treaty is the production of evidence for use 
at trial, and that purpose would be frustrated if the Requested 
State could routinely permit the Requesting State to see 
valuable evidence, but impose confidentiality restrictions that 
prevent the Requesting State from using it. If assistance is 
provided with a condition under this paragraph, the U.S. could 
deny public disclosure under the Freedom of Information Act.
    If the United States Government received evidence under the 
Treaty for one prosecution that appeared to be exculpatory to a 
defendant in another prosecution, the United States might be 
obliged to share the evidence with that defendant in the second 
case. Brady v. Maryland, 373 U.S. 83 (1963). Therefore, 
paragraph 3 states that nothing in Article 7 shall preclude the 
use or disclosure of evidence or information to the extent that 
there is an obligation to do so under the Constitution of the 
Requesting State in a criminal prosecution. The Requesting 
State is required to notify the Requested State before any such 
disclosure.
    Paragraph 4 states that once evidence obtained under the 
Treaty has been revealed publicly in accordance with paragraphs 
1 or 2, the Requesting State is free to use the evidence for 
any purpose. Once evidence obtained under the Treaty has been 
revealed in a public trial, that information effectively 
becomes part of the public domain, and is likely to become a 
matter of common knowledge, perhaps even be described in the 
press. The negotiators noted that once this has occurred, it is 
practically impossible for the Central Authority of the 
Requesting Party to block its use.
    It should be noted that under Article 1(4) the restrictions 
outlined in Article 7 are for the benefit of the Parties, and 
the invocation and enforcement of these provisions are left 
entirely to the Parties. If a private person alleges that a 
Latvian authority seeks to use information or evidence obtained 
from the United States in a manner inconsistent with this 
article, the person can inform the Central Authority of the 
United States of the allegations for consideration as a matter 
between the Parties.

        Article 8--Testimony or Evidence in the Requested State

    Paragraph 1 states that a person in the Requested State 
from whom testimony or evidence is sought shall be compelled, 
if necessary, to appear and testify or produce items, including 
documents and records. The compulsion contemplated by this 
article can be accomplished by subpoena or any other means 
available under the law of the Requested State.
    The second sentence of Article 8(1) makes applicable the 
criminal laws in the Requested State in situations in which a 
person in that State provides false evidence in execution of a 
request. This language is essential for Latvia; it provides a 
basis, which Latvia would otherwise lack, to prosecute a person 
for giving false testimony in the execution of Treaty requests. 
The Latvian negotiators gave assurances that, given such 
language, Latvia not only could but would prosecute false 
statements in connection with testimony under this article. The 
negotiators expect that where a falsehood is made in execution 
of a request, the Requesting State could ask the Requested 
State to prosecute for perjury, and provide the Requested State 
with the information or evidence needed to prove the falsehood. 
The U.S.-Spain Mutual Legal Assistance Treaty contains a 
similar provision. \10\
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    \10\ U.S.-Spain Mutual Legal Assistance Treaty, Nov. 20, 1990, art. 
8(1).
---------------------------------------------------------------------------
    Paragraph 2 requires that, upon request, the Requested 
State shall furnish information in advance about the date and 
place of the taking of testimony or evidence.
    Paragraph 3 provides that persons specified in the request, 
including the defendant and his counsel, shall be permitted by 
the Requested State to be present and pose questions during the 
taking of testimony under this article.
    Paragraph 4 deals with claims of immunity, incapacity, and 
privilege based on the law of the Requesting State but raised 
in the Requested State. The immunities and privileges available 
to witnesses under the law of the Requested State are not 
affected by paragraph 4. No person will be compelled in the 
Requested State to furnish information or evidence if he has a 
right not to do so under the law of the Requested State. Thus, 
a witness questioned in the United States pursuant to a request 
from Latvia, in addition to any applicable constitutional 
privilege (e.g., self-incrimination, to the extent applicable 
in the context of evidence being taken for foreign 
proceedings), may claim a testimonial privilege (e.g., 
attorney-client) legally recognized under United States law. A 
witness testifying in Latvia may raise any of the similar 
privileges available under Latvian law. However, paragraph 4 
does require that if a witness attempts to assert in the 
Requested State a privilege that is unique to the Requesting 
State, the Requested State will take the desired evidence and 
turn it over to the Requesting State along with notice that it 
was obtained over a claim of privilege. The applicability of 
the privilege can then be determined in the Requesting State, 
where the scope of the privilege and the legislative and policy 
reasons underlying the privilege are best understood. A similar 
provision appears in many of our mutual legal assistance 
treaties. \11\
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    \11\ See e.g., U.S.-Netherlands Mutual Legal Assistance Treaty, 
June 12, 1981, art. 5(1), T.I.A.S. No. 10734, 1359 U.N.T.S. 209; U.S.-
Bahamas Mutual Legal Assistance Treaty, June 12 & Aug. 18, 1987, art. 
9(2); U.S.-Mexico Mutual Legal Assistance Treaty, supra, note 9, art. 
7(2); U.S.-Philippines Mutual Legal Assistance Treaty, supra note 4, 
art. 8(4).
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    Paragraph 5 states that evidence produced pursuant to this 
article may be authenticated by an attestation, including, in 
the case of business records, authentication in the manner 
indicated in Form A appended to the Treaty. Thus, the provision 
establishes a procedure for authenticating records in a manner 
essentially similar to Title 18, United States Code, Section 
3505. The second sentence of this paragraph provides for the 
admissibility of a certification of the absence or nonexistence 
of a record. The third sentence provides that evidence produced 
pursuant to the Form A, of Form B certifying the absence or 
nonexistence of a record, shall, without additional 
authentication, be admissible as evidence to prove the content 
of the record or the fact of its absence or nonexistence. This 
provision is primarily for the benefit of the United States 
inasmuch as it makes such evidence ``admissible'' without the 
appearance of a witness located in a foreign country. Of 
course, it will be up to the judicial authority presiding over 
the U.S. trial to determine whether the evidence will in fact 
be admitted. Evidentiary tests other than authentication (such 
as relevance, and materiality) still have to be satisfied in 
each case.

               Article 9--Records of Government Agencies

    Paragraph 1 obliges each Party to furnish the other with 
copies of publicly available records, including documents or 
information in any form, possessed by a government agency or 
judicial authority in the Requested State. The phrase 
``government agencies and judicial authorities'' includes all 
executive, judicial, and legislative units at the federal, 
state, and local level in each country.
    Paragraph 2 provides that the Requested Party may provide 
copies of any records, including documents or information in 
any form, that are in the possession of a government department 
or agency in that State, but that are not publicly available, 
to the same extent and under the same conditions as such copies 
would be available to its own law enforcement or judicial 
authorities. The Requested State may in its discretion deny a 
request pursuant to this paragraph entirely or in part.
    The delegations discussed whether this article should serve 
as a basis for exchange of information in tax matters. It was 
the intention of the United States delegation that the United 
States be able to provide assistance under the Treaty in tax 
matters, and such assistance could include tax return 
information when appropriate. The United States delegation was 
satisfied after discussion that this Treaty is a ``convention 
relating to the exchange of tax information'' for purposes of 
Title 26, United States Code, Section 6103(k)(4), and the 
United States would have the discretion to provide tax return 
information to Latvia under this article in appropriate cases. 
\12\
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    \12\ Under 26 U.S.C. 6103(i) information in the files of the 
Internal Revenue Service (generally protected from disclosure under 26 
U.S.C. 6103) may be disclosed to federal law enforcement personnel in 
the United States for use in a non-tax criminal investigations or 
proceedings, under certain conditions and pursuant to certain 
procedures. The negotiators agreed that this Treaty (which provides 
assistance both for tax offenses and in the form of information in the 
custody of tax authorities of the Requested State) is a ``convention . 
. . relating to the exchange of tax information'' under Title 26, 
United States Code, Section 6103(k)(4), pursuant to which the United 
States may exchange tax information with treaty partners. Thus, the 
Internal Revenue Service may provide tax returns and return information 
to Latvia through this Treaty when, in a criminal investigation or 
prosecution, the Latvian authority on whose behalf the request is made 
can meet the same conditions required of United States law enforcement 
authorities under Title 26, United States Code, Sections 6103(h) and 
(i). As an illustration, a Latvian request for tax returns to be used 
in a non-tax criminal investigation, in accordance with 26 U.S.C. 
6103(i)(1)(A), would have to specify that the Latvian law enforcement 
authority is:
    personally and directly engaged in--
    (i) preparation for any judicial or administrative proceeding 
pertaining to the enforcement of a specifically designated Latvian 
criminal statute (not involving tax administration) to which Latvia is 
or may be a party.
    (ii) any investigation which may result in such a proceeding, or
    (iii) any Latvian proceeding pertaining to enforcement of such a 
criminal statute to which Latvia is or may be a party. (See 26 U.S.C. 
6103(i)(1)(A))
    The request would have to be presented to a federal district court 
judge or magistrate for an order directing the Internal Revenue Service 
to disclose the tax returns as specified at 26 U.S.C. 6103(i)(1)(B). 
Before issuing such an order, the judge or magistrate would have to 
determine, also in accordance with 26 U.S.C. 6103(i)(1)(B), that:
    (i) there is reasonable cause to believe, based upon information 
believed to be reliable, that a specific criminal act has been 
committed,
    (ii) there is reasonable cause to believe that the return or return 
information is or may be relevant to a matter relating to the 
commission of such act, and
    (iii) the return or return information is sought exclusively for 
use in a Latvian criminal investigation or proceeding concerning such 
act, and the information sought to be disclosed cannot reasonably be 
obtained, under the circumstances, from another source.
    In other words, the Latvian law enforcement authorities seeking tax 
returns would be treated as if they were United States law enforcement 
authorities--undergo the same access procedure where they would be held 
to the same standards.
---------------------------------------------------------------------------
    Paragraph 3 states that records provided under this article 
may be authenticated in accordance with the procedures 
specified in the Convention Abolishing the Requirement of 
Legalization for Foreign Public Documents. \13\ The absence or 
nonexistence of such records shall, upon request, be certified 
by an official responsible for maintaining them through the use 
of Form C appended to the Treaty. Records authenticated under 
this paragraph, or the form certifying the absence or 
nonexistence of the records, shall be admissible in evidence in 
the Requesting State to prove the content of the records, or 
the absence or nonexistence thereof. Thus, the Treaty 
establishes a procedure for the admission of foreign official 
records by certification without the need for a foreign witness 
to appear and testify.
---------------------------------------------------------------------------
    \13\ Convention Abolishing the Requirement of Legalization for 
Foreign Public Documents, done at The Hague, Oct. 5, 1961. Both the 
United States and Latvia are parties to this Convention, under which an 
apostille applied to a document by one Party must be accepted by other 
Parties as proof of authenticity. The Hague Legalization Convention 
permits the Requested State to charge a modest fee for the apostille, 
but Latvia's delegation insisted that the Requested State should not 
require payment of the apostille fee when the request is made pursuant 
to Article 9 of this Treaty, in keeping with Article 6 of this Treaty. 
That is why Article 9(3) states that authentication shall be done 
``without cost to the Requesting State.''
---------------------------------------------------------------------------
    Paragraph 3, similar to Article 8(5), states that documents 
authenticated under this paragraph shall be ``admissible'' but 
whether the evidence will in fact be admitted remains the 
decision of the judicial authority presiding over the trial. 
Other evidentiary requirement such as relevance or materiality 
must still be established.

             Article 10--Testimony in the Requesting State

    This article provides that upon request, the Requested 
State shall invite persons who are located in its territory to 
travel to the Requesting State or a third State to appear 
before an appropriate authority in the other State. The Central 
Authority of the Requested State is to notify the Requesting 
State of the invitee's response. An appearance in the 
Requesting State or third State under this article is not 
mandatory, and the prospective witness may refuse the 
invitation.
    The Requesting State, pursuant to Article 6, is expected to 
pay the expenses of such an appearance, and paragraph 2 of 
Article 10 provides that the witness shall be informed of the 
amount and kind of expenses that the Requesting State will 
provide in a given situation. It is assumed that such expenses 
would normally include the costs of transportation, room, and 
board. The second sentence of paragraph 2 states that a person 
who agrees to appear pursuant to this article may ask that the 
Requesting State advance money to cover the expenses, and an 
advance may be provided through the Embassy or a consulate of 
the Requesting State.
    Article 10(3) provides that the Central Authority of the 
Requesting State may determine that a person appearing in that 
State pursuant to this article shall not be subject to service 
of process, or be detained or ``subjected to any restriction of 
personal liberty'' for acts or convictions that occurred before 
the person departed from the Requested State. This 
determination does not protect against prosecution, punishment, 
or restriction of personal liberty with respect to acts 
committed after departure from the Requested State, or against 
the filing of a civil suit (as opposed to service of the 
process). This article is intended to apply to persons who are 
transferred while in custody pursuant to Article 12 and to 
those who appear as civilians and are not incarcerated.
    Paragraph 4 states that the safe conduct guaranteed in the 
preceding paragraph expires seven days after the Central 
Authority of the Requesting State has notified the Central 
Authority of the Requested State that the person's presence is 
no longer required, or if he leaves the territory of the 
Requesting State and thereafter returns to it.

               Article 11--Transfer of Persons in Custody

    In some criminal cases, a need arises for the presence 
(generally for testimony) in one State of a person in custody 
in another State. In some instances, foreign States are willing 
and able to ``lend'' incarcerated persons to the Requesting 
State, provided the person is carefully guarded while in the 
other State and returned to the Requested State when no longer 
needed. For example, on occasion the United States has arranged 
for consenting federal inmates to be transported to foreign 
countries to assist in criminal proceedings. \14\
---------------------------------------------------------------------------
    \14\ For example, in September, 1986, the United States Justice 
Department and the United States Drug Enforcement Administration 
arranged for four federal prisoners to be transported to the United 
Kingdom to testify for the Crown in Regina v. Dye, Williamson, Ells, 
Davies, Murphy, and Millard, a major narcotics prosecution in ``the Old 
Bailey'' (Central Criminal Court) in London.
---------------------------------------------------------------------------
    Paragraph 1 provides an express legal basis for cooperation 
in these matters. It is based on Article 26 of the United 
States-Switzerland Mutual Legal Assistance Treaty, \15\ which 
in turn is based on Article 11 of the European Convention on 
Mutual Assistance in Criminal Matters. \16\
---------------------------------------------------------------------------
    \15\ U.S.-Switzerland Mutual Legal Assistance Treaty, supra note 8, 
art. 26.
    \16\ See also Title 18, United States Code, Section 3508, which 
provides for the transfer to the United States of witnesses in custody 
in other States whose testimony is needed at a federal criminal trial.
---------------------------------------------------------------------------
    Paragraph 2 provides that a person in the custody of the 
Requesting State whose presence in the Requested State is 
sought for purposes of assistance under this Treaty may be 
transferred from the Requesting State to the Requested State if 
the person consents and if the Central Authorities of both 
States agree. This would also cover situations in which a 
person in custody in the United States on a criminal matter has 
sought permission to travel to another country to be present at 
a deposition being taken there in connection with the case. 
\17\
---------------------------------------------------------------------------
    \17\ See also United States v. King, 552 F.2d 833 (9th Cir. 1976), 
cert. denied, 430 U.S. 966 (1977), where the defendants insisted on 
traveling to Japan to be present at the deposition of certain witnesses 
in prison there.
---------------------------------------------------------------------------
    Paragraph 3 provides express authority for the receiving 
State to maintain such a person in custody throughout the 
person's stay there, unless the sending State specifically 
authorizes release. This paragraph also authorizes the 
receiving State to return the person in custody to the sending 
State, and provides that this return will occur in accordance 
with terms and conditions agreed upon by the Central 
Authorities. The initial transfer of a person under this 
article requires the consent of the person involved and of both 
Central Authorities, but the provision does not require that 
the person consent to be returned to the sending State.
    Once the receiving State has agreed to assist the sending 
State's investigation or proceeding pursuant to this article, 
it would be inappropriate for the receiving State to hold the 
person transferred and require extradition proceedings before 
allowing him to return to the sending State as agreed. 
Therefore, paragraph (3)(c) specifies that extradition 
proceedings will not be required before the status quo is 
restored by the return of the person transferred. Paragraph 
(3)(d) states that the person is to receive credit for time 
served while in the custody of the receiving State. This is 
consistent with United States practice in these matters.
    Paragraph 3(e) makes it clear that when the Requesting 
State proposes that a person in custody in the Requested State 
be transferred to a third State, the Requesting State shall be 
obliged to make all arrangements necessary to comply with this 
paragraph's requirements, including the incarceration of the 
person while in that third State and the return of the person 
to the Requested State.
    Article 11 does not provide for any specific ``safe 
conduct'' for persons transferred under this article because it 
is anticipated that the authorities of the two states will deal 
with such situations on a case-by-case basis. If the person in 
custody is unwilling to be transferred without safe conduct, 
and the Receiving State is unable or unwilling to provide 
satisfactory assurances in this regard, the person is free to 
decline to be transferred.

               Article 12--Transit of Persons in Custody

    Most modern extradition treaties provide for cooperation in 
the transit of persons being extradited, \18\ although the 
extradition treaty currently in force between the United States 
and Latvia \19\ is silent on this topic. Article 12 is not 
focused on the transit of extradited persons. Rather, this 
article provides a basis for mutual cooperation with respect to 
prisoners who are involved in a criminal investigation or 
prosecution other than as extradited fugitives (e.g., as 
witnesses appearing to testify or as defendants appearing to be 
present at a proceeding).
---------------------------------------------------------------------------
    \18\ See, e.g., U.S.-Hungary Extradition Treaty, Dec. 1, 1994, art. 
19; U.S.-Japan Extradition Treaty, Mar. 3, 1978, art. 15, 31 U.S.T. 
892, T.I.A.S. 9625; U.S.-Mexico Extradition Treaty, supra note 9, art., 
20, 31 U.S.T. 5059, T.I.A.S. 9656.
    \19\ U.S.-Latvia Extradition Treaty, Oct. 16, 1923, 43 Stat. 1738, 
T.S. 677, 9 Bevans 515, 27 L.N.T.S. 371, as amended Oct. 10, 1934, 49 
Stat. 3131, T.S. 884, 9 Bevans 554, 158 L.N.T.S. 263.
---------------------------------------------------------------------------
    Paragraph 1 gives each Party the power to authorize transit 
through its territory of a person being transferred to the 
other State by a third State. Paragraph 2 obligates each Party 
to keep in custody a person in transit during the transit 
period. Requests for transit are to contain a description of 
the person being transported and a brief statement of the facts 
of the case for which the person is sought. Paragraph 3 allows 
each Party to refuse transit of its nationals.
    Under this article, no advance authorization is needed if 
the person in custody is in transit to one of the Parties and 
is traveling by aircraft and no landing is scheduled in the 
territory of the other. Should an unscheduled landing occur, a 
request for transit may be required at that time, and the 
Requested State may grant the request if, in its discretion, it 
is deemed appropriate to do so. Where transit is granted, the 
person in transit shall be kept in custody until such time as 
the person may continue in transit out of the Requested State.

       Article 13--Location or Identification of Persons or Items

    This article requires each Party to use its ``best 
efforts'' to locate or identify persons (e.g., witnesses) or 
items (e.g., evidence) in relation to an investigation or 
proceeding covered by the Treaty. The negotiators contemplated 
that ``best efforts'' would vary depending on the information 
provided in the request, in accordance with Article 4, 
regarding the location of the person or item. When little 
information is provided--for example, when the request merely 
states that a potential witness may be located in the Requested 
State--the Requested State is not expected to exert much 
effort. As the level of information increases, so does the 
obligation to search for the person or item.
    The obligation to locate persons or items is limited to 
persons or items that are or may be in the territory of the 
Requested State. Thus, the United States would not be obliged 
to attempt to locate persons or items in third countries. In 
all instances, the Requesting State is expected to supply all 
available information about the last known location of the 
persons or items sought.

                    Article 14--Service of Documents

    Paragraph 1 requires the Requested State to use its ``best 
efforts'' to effect service of any document related to any 
request for assistance made under the Treaty. ``Best efforts'' 
varies depending on the information provided in the request, in 
accordance with Article 4. It is expected that when the United 
States is the Requested State, service under the Treaty will be 
made by registered mail (in the absence of any request by 
Latvia to follow a specified procedure for service) or by the 
United States Marshal's Service in instances in which personal 
service is requested.
    Paragraph 2 provides that when the documents to be served 
call for the appearance of a person in the Requesting State, 
the documents should be received by the Central Authority of 
the Requested State a reasonable time before the date set for 
any such appearance.
    Paragraph 3 requires that proof of service be returned to 
the Requesting State in the manner specified in the request.

                     Article 15--Search and Seizure

    Where appropriate, the Requested State may search for, 
secure, and deliver items needed as evidence, or for other 
purposes, for the Requesting State. Article 5(1) empowers 
United States courts to issue search warrants to obtain 
evidence request by Latvia.
    For the United States to be able to execute a search and 
seizure under this Article, the Latvian request must provide 
information demonstrating ``probable cause,'' as is required by 
the Fourth Amendment to the U.S. Constitution. The Latvian 
request must contain facts, or be augmented by facts from a 
reliable source, that persuade a U.S. judicial authority that 
probable cause exists to believe that a crime has been or is 
being committed in Latvia and that particularly described 
evidence of the crime is located at a particularly described 
place to be searched in the United States. A U.S. request to 
Latvia would have to satisfy the corresponding evidentiary 
standard in Latvia. \20\
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    \20\ The Latvian delegation said that there is no general standard 
of proof for a search warrant in Latvia, where one judge may order a 
search based on evidence solely that another judge would deem 
insufficient. The Latvian delegation also said that as a matter of 
practice, a Latvian judge asked to issue a search warrant in Latvia for 
evidence needed in the U.S. might ask to see a search warrant for that 
evidence issued in the U.S. The U.S. delegation explained that our 
courts do not issue warrants to search places outside U.S. 
jurisdiction.
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    Paragraph 2 is designed to establish a chain of custody for 
evidence seized pursuant to a request and to provide a method 
for proving that chain by certificates admissible in a judicial 
proceeding in the Requesting State. The Requested State is 
required to maintain a reliable record, from the time of a 
seizure, of the ``identity of the item, the integrity of its 
condition, and the continuity of its condition.'' This record 
takes the form of custodians' certificates. Each successive 
custodian prepares a certificate that, when joined with the 
other certificates from other custodians, provides a reliable 
record tracing the route of the item seized (and any change in 
its condition) from the Requested State to the judicial 
proceeding in the Requesting State at which it is introduced 
into evidence. If the judge in the Requesting State finds that 
the process is trustworthy, the judge may admit the evidence 
with the accompanying certificates as authentic. The judge is 
free to deny admission of the evidence in spite of the 
certificates if a reason other than authenticity exists to do 
so. For the United States, this provision is intended to limit 
the need to summon officials of the Requested State to testify 
at trial to situations in which the reliability of the evidence 
(its origin or condition) is not in serious question. For 
Latvia, the chain of custody is not a significant factor in the 
admissibility of evidence.
    Paragraph 3 permits the Requested State, as a matter of 
discretion, to protect the rights of third parties in the items 
seized. The negotiators intended that the Requested State, in 
using its discretion to impose conditions, would do so only to 
the extent ``deemed necessary.'' This paragraph is not intended 
to serve as an impediment to the transfer of items seized. This 
article is similar to provisions in many other United States 
mutual legal assistance treaties. \21\
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    \21\ See e.g., U.S.-Argentina Mutual Legal Assistance Treaty, supra 
note 4; U.S.-Bahamas Mutual Legal Assistance Treaty, supra note 11; 
U.S.-Canada Mutual Legal Assistance Treaty, supra, note 9; U.S.-U.K. 
Mutual Legal Assistance Treaty Concerning the Cayman Islands, Jul. 3, 
1986; U.S.-Hungary Mutual Legal Assistance Treaty, Dec. 1, 1994; U.S.-
Korea Mutual Legal Assistance Treaty, Nov. 23, 1993; U.S.-Panama Mutual 
Legal Assistance Treaty, Apr. 11, 1991; U.S.-Philippines Mutual Legal 
Assistance Treaty, supra note 4; U.S.-Spain Mutual Legal Assistance 
Treaty, supra note 10; U.S.-United Kingdom Mutual Legal Assistance 
Treaty, Jan. 6, 1994.
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                      Article 16--Return of Items

    This article requires that upon request by the Central 
Authority of the Requested State, the Central Authority of the 
Requesting State return as soon as possible any item, including 
a document or record, provided by the Requested State pursuant 
to the Treaty. Both Parties anticipate that, unless original 
records or items of significant intrinsic value are involved, 
the Requested State will not usually request return of the 
item; however, both Parties recognize that this is a matter 
best left to development in practice.

            Article 17--Assistance in Forfeiture Proceedings

    A major goal of the Treaty is to enhance the efforts of 
both the United States and Latvia in combating narcotics 
trafficking. One significant strategy in this effort is action 
by United States authorities to seize and confiscate money, 
property, and other proceeds of drug trafficking.
    This article is similar to a number of United States mutual 
legal assistance treaties, including Article 17 in the U.S.- 
Canada Mutual Legal Assistance Treaty and Article 15 of the 
U.S.-Thailand Mutual Legal Assistance Treaty. Paragraph 1 
authorizes the Central Authority of one State to notify the 
other of the existence in the latter's territory of proceeds or 
instrumentalities of offenses that may be forfeitable or 
otherwise subject to seizure. The term ``proceeds or 
instrumentalities'' was intended to include things such as 
money, vessels, or other valuables either used in the crime or 
purchased or obtained as a result of the crime.
    Upon receipt of notice under this article, the Central 
Authority of the State in which the proceeds or 
instrumentalities are located may take whatever action is 
appropriate under its law. For instance, if the assets in 
question are located in the United States and were obtained as 
a result of a fraud in Latvia, they could be seized under 18 
U.S.C. 981 in aid of a prosecution under Title 18, United 
States Code, Section 2314, \22\ or be subject to a temporary 
restraining order in anticipation of a civil action for the 
return of the assets to the lawful owner. Proceeds of a foreign 
kidnapping, robbery, extortion, or a fraud by or against a 
foreign bank are civilly and criminally forfeitable in the 
United States since these offenses are predicate offenses under 
U.S. money laundering laws. \23\ Thus, it is a violation of 
U.S. criminal law to launder the proceeds of these foreign 
fraud or theft offenses when such proceeds are brought into the 
United States.
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    \22\ This statute makes it an offense to transport money or 
valuables in interstate or foreign commerce knowing that they were 
obtained by fraud in the United States or abroad.
    \23\ Title 18, United States Code, Section 1956(c)(7)(B).
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    If the assets are the proceeds of drug trafficking, it is 
especially likely that the Parties will be able and willing to 
help one another. Title 18, United States Code, Section 
981(a)(1)(B), allows for the forfeiture to the United States of 
property ``which represents the proceeds of an offense against 
a foreign nation involving the manufacture, importation, sale, 
or distribution of a controlled substance (as such term is 
defined for the purposes of the Controlled Substance Act) 
within whose jurisdiction such offense or activity would be 
punishable by death or imprisonment for a term exceeding one 
year if such act or activity had occurred within the 
jurisdiction of the United States.'' This is consisten