OPINION
The Russian government sought the aid of the United States government, pursuant to a bilateral treaty, in its criminal investigation and prosecution of Appellant Arkadi A. Gontmakher for illegal crabbing. The district court issued a subpoena for certain
FACTUAL AND PROCEDURAL HISTORY
Congress long ago authorized parties to request legal assistance from the federal courts in the collection of evidence for use in a foreign proceeding. Originally enacted in the mid-19th century, the statute now codified at 28 U.S.C. § 1782 permits federal courts to provide such assistance. See, e.g., Intel Corp. v. Advanced Micro Devices, Inc.,
The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court. By virtue of his appointment, the person appointed has power to administer any necessary oath and take the testimony or statement. The order may prescribe the practice and procedure, which may be in whole or part the practice and procedure of the foreign country or the international tribunal, for taking the testimony or statement or producing the document or other thing. To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure.
A person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege.
28 U.S.C. § 1782(a).
To invoke § 1782 and obtain federal-court assistance, the requesting entity presents a written request known as a “letter rogatory” (or, if presented by an “interested person,” known as a “letter of request”) to the applicable federal district court. See generally In re Comm’r’s Subpoenas, 325 F.3d 1287, 1290 (11th Cir. 2003), abrogation in other part recognized by In re Clerici,
Over the years, the courts have interpreted § 1782 as imposing certain absolute requirements on the request for assistance. For instance, courts interpreted an earlier version of the statute to require that the foreign nation be a party to the proceeding. Intel,
One of the important congressional purposes in broadening the scope of federal-court assistance was to encourage reciprocity by other nations. See, e.g., United Kingdom,
The absolute requirements under § 1782 are only part of the story, however. The courts have stressed that, even if those requirements are met, a district court still retains the discretion to deny a request. See, e.g., Intel,
In recent decades, the United States has ratified an increasing number of bilateral treaties with other nations to facilitate legal proceedings, known as mutual legal assistance treaties or MLATs. See, e.g., In re Comm’r’s Subpoenas, 325 F.3d
At issue here is the MLAT between the United States and Russia, which entered into force after ratification by both parties in 2002. Treaty Between the United States of America and the Russian Federation on Mutual Legal Assistance in Criminal Matters (“US-Russia MLAT”), June 17, 1999, S. Treaty Doc. No. 106-22. In general, the treaty provides that, upon request, the two nations will provide “comprehensive mutual legal assistance in criminal matters.” US-Russia MLAT, art. 1, ¶ 1. Legal assistance includes “providing documents, records, and other items.” Id. art. 2(2). The treaty specifies that the receiving party “shall promptly execute the request,” id. art. 7, ¶ 1, and that “[t]he competent authorities of the Requested Party shall have the authority to issue subpoenas, search warrants, or other orders necessary for the execution of requests,” id. art. 7, ¶ 3.
In December 2007, the Russian government requested legal assistance from the United States pursuant to the US-Russia MLAT. The request concerned the Russian government’s criminal investigation and prosecution of Appellant Gontmakher, a United States citizen and president of Appellant Global Fishing. In September 2007, Russian authorities had arrested Gontmakher in Moscow, filed criminal charges against him in Moscow City Court, and detained him- pursuant to those charges. Pertinent to this appeal, the Russian government’s request for legal assistance included the production of certain documents then in the possession of Global Fishing.
The United States government applied to the district court for the appointment of co-commissioners to execute the request for legal assistance. The United States government petitioned the court “pursuant to Article 7 of the [MLAT], 28 U.S.C. § 1782, and the Court’s own inherent authority” to appoint two named co-commissioners “to collect evidence from witnesses and to take such other action as is required to execute the attached request from Russia made pursuant to said Treaty.” That attached request details the many pieces of evidence sought by Russia. The district court granted the application and appointed co-commissioners from the United States Attorney’s office.
In August 2008, the commissioners subpoenaed Global Fishing to produce the documents.
The United States countered that, because the request for assistance arose under the US-Russia MLAT and not directly under § 1782, the district court lacked discretion to quash the subpoena. According to the United States, the US-Russia MLAT superseded the substantive aspects of § 1782, including the district court’s “broad discretion” to deny requests.
After hearing oral argument, the district court denied the motion for a protective order. The court held that it lacked discretion under § 1782 but that the subpoena nevertheless must meet minimum constitutional standards. The court held that the request here did not offend the United States Constitution and therefore denied the motion for a protective order. Appellants timely appeal.
DISCUSSION
A. Appellate Jurisdiction Over the District Court’s Order
Before reaching the parties’ arguments on the merits, we must determine whether we have jurisdiction. We have appellate jurisdiction over the district court’s order denying the motion for a protective order only if the order is “final” under 28 U.S.C. § 1291.
In the domestic criminal context, we lack interlocutory appellate jurisdiction over an order denying a motion to quash a subpoena, because the order is non-final. Silva v. U.S. Dist. Court (In re Grand Jury Subpoena Issued to Bailin),
But there is an important difference between an appeal from an order concerning an ongoing domestic criminal case and an appeal from an order concern
For that reason, the courts have permitted appeals from a district court’s orders under § 1782, even if the complaining party has not subjected himself or herself to contempt sanctions. The Third Circuit succinctly explained in Bayer AG v. Betachem, Inc.,
Our sister circuits have ruled that they have appellate jurisdiction over orders issued under § 1782 without qualification or exception. Phillips v. Beierwaltes,
Our own jurisprudence is less absolute. In most cases, we have simply stated,
In a little-cited case decided in 1974, however, we held that, when the subject of the subpoena in the federal case is also a party to the foreign litigation, the rule from the domestic criminal context applies: Appellate jurisdiction lies only if the interested party suffers contempt. In re Letters Rogatory from Haugesund, Norway,
Here, the subject of the subpoena is Global Fishing, which is not a party to the underlying criminal case in Russia against Gontmakher. A corporation is a separate legal entity from its employees, including its president. See, e.g., Abrahim & Sons Enters, v. Equilon Enters., LLC,
B. Federal Court Review of Requests under § 1782 and the US-Russia MEAT
The parties offer contrasting views on the proper scope of federal court review in situations such as this one, in which the executive branch has requested assistance under both § 1782 and the US-Russia MLAT. Appellants contend that, as with any request under § 1782, the district court must exercise its “broad discretion” to honor or to deny a request for
The government offers a different interpretation of the MLAT. In the government’s view, although the US-Russia MLAT incorporated the procedural mechanism of § 1782 to carry out requests for assistance via the federal courts, the treaty superseded all the substantive aspects of § 1782, including the discretionary factors discussed by the Supreme Court in Intel. The government argues that the only substantive limitations on a request originating under the US-Russia MLAT are the limitations defined by the treaty itself. Accordingly, the federal courts must execute requests for assistance without consideration of the § 1782 discretionary factors.
We therefore must determine whether the treaty superseded the statute’s grant of discretionary authority to the district courts. See Cont’l Ins. Co. v. Fed. Express Corp.,
Neither Appellants nor the government asserts that the meaning of the MLAT’s text is plain. We agree that there is no plain meaning here. Although the text of some provisions provides mild support for one interpretation or the other, no provision addresses, or even purports to address, the question disputed here— the scope of federal court review of MLAT requests. The closest provision in this regard is the first sentence of Article 7, paragraph 3, which states: “Requests shall be executed in accordance with the laws of the Requested Party except if this Treaty provides otherwise.” But that sentence is ambiguous. The phrase “executed in accordance with the laws of the Requested Party” could mean “subject to the procedural mechanisms and substantive limitations of the laws of the Requested Party.” Or, at least as plausibly, the phrase could mean only “carried out in accordance with the procedural mechanisms of the Re
1. Deference to the Executive Branch
“It is well settled that the Executive Branch’s interpretation of a treaty ‘is entitled to great weight.’ ” Abbott,
2. Harmony in Results
We have adopted the view of the Restatement (Third) of Foreign Relations Law § 325 cmt. d (1987) that “[t]reaties that lay down rules to be enforced by the parties through their internal courts or administrative agencies should be construed so as to achieve uniformity of result despite differences between national legal systems.” See United States v. Lombera-Camorlinga,
3. Technical Analysis
The technical analysis of the treaty that the United States Department of Justice and Department of State prepared, which the President submitted to the Senate at the same time that he asked for the Senate’s ratification, supports the government’s view. See In re Comm’r’s Subpoenas,
4. Article I of the US-Russia MLAT
Consideration of Article 4 of the treaty strongly supports the government’s view. That article specifies three — and only three — grounds for denying a request: an exception for military crimes, an exception for security or “other essential interests,” and an exception for requests that do not conform to the treaty. The use of three specified reasons for denial in a closed list strongly suggests that those reasons are the only permissible reasons for denying a request under the treaty. Indeed, the technical analysis confirms that view: Article 4 “specifies the limited classes of cases in which assistance may be denied under the Treaty.” Under Appellants’ view, however, an additional, unstated basis for denial exists: United States courts may choose to exercise their broad discretion to deny the request, evaluating a wide range of equitable considerations. That view is hard to reconcile with the text of Article 4 and the technical analysis’ straight-forward reading of that text. Not only is that view hard to reconcile with the text, but it also could create tension with foreign affairs by effectively requiring the United States to deny a treaty request for a reason other than one specified in Article 4.
5. Liberal Construction
A treaty “should generally be construed liberally to give effect to the purpose which animates it and ... even where a provision of a treaty fairly admits of two constructions, one restricting, the other enlarging, rights which may be claimed under it, the more liberal interpretation is to be preferred.” United States v. Stuart,
6. Our Sister Circuit’s Interpretation
The Eleventh Circuit reached the same conclusion, for many of the same reasons, when it interpreted the US-Canada MLAT. In re Comm’r’s Subpoena,
We conclude that the most logical construction of the ... MLAT is that the Treaty partners intended to utilize the established procedures set forth in the existing laws of the Requested State to execute the treaty requests, rather than to subject each and every treaty request to any and all limitations of existing law of the Requested State. That is, the Treaty utilizes § 1782 as a procedure for executing requests, but not as a means for deciding whether or not to grant or deny a request so made.
Id. at 1297.
7. Conclusion
Almost every indicator of the treaty-parties’ intent favors the government’s view. Appellants are correct that the treaty does not expressly specify the procedure/substance distinction. Appellants are
We cannot help but note that our conclusion may carry few practical implications. The § 1782 discretionary factors include, primarily, whether “the person from whom discovery is sought is a participant in the foreign proceeding”; “the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government or the court or agency abroad to U.S. federal-court judicial assistance”; whether the request “conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States”; and whether the request is “unduly intrusive or burdensome.” Intel,
In sum, many of the § 1782 discretionary factors would weigh automatically in favor of granting the request, and many would no longer require (or permit) consideration by the courts because they already have been considered by a co-equal branch of the United States government. When a request for assistance under the MLAT arrives before a district court, then, almost all the factors already would point to the conclusion that the district court should grant the request.
C. Constitutional Limitations
Our conclusion that the parties to the treaty intended to remove the district court’s traditional “broad discretion” does not end the inquiry. The government argues that, upon receiving an MLAT request for assistance from the executive branch, the district court has no choice but to comply with that request. According to the government, the constitution imposes no limits on what the executive branch may require the courts to do in that situation. We disagree.
Treaties, like statutes, are subject to constitutional limits, including the separation of powers and the guarantee of due process. See Am. Ins. Ass’n v. Garamendi,
The Constitution’s separation of powers does not permit either the legislative or executive branch to convert the judicial branch into a mere functionary. Instead, the Constitution requires that “no provision of law ‘impermissibly threaten[ ] the institutional integrity of the Judicial Branch.’ ” Mistretta v. United States,
We leave for another day the elucidation of the precise scope of applicable constitutional limits. For present purposes, we find it sufficient to describe certain broad outlines. At a minimum, the Constitution requires that a request not be honored if the sought-after information would be used in a foreign judicial proceeding that “depart[s] from our concepts of fundamental due process and fairness.” Seoul,
We can conceive of situations in which the Constitution might require the district court to deny a request for assistance. For example, if credible evidence demonstrated that compliance with a subpoena would lead to an egregious violation of human rights, such as torture, then the Constitution may require the courts to deny assistance. The court’s role in this context is limited, however, and must be
Here, Appellants assert that we must deny assistance for two reasons: First, the Russian system of criminal justice, in general, is corrupt. Second, the Russian government failed to observe certain time limits set by Russian law to investigate and prosecute Gontmakher. Appellants do not argue that the production of documents itself will cause some egregious outcome. Rather, they argue that separation-of-powers and due-process concerns preclude the judicial branch from furthering these allegedly corrupt and illegal proceedings. Having reviewed the record, we are satisfied that the enforcement of the subpoena at issue here does not offend the Constitution.
The Constitution assigns to the political branches the primary responsibility of weighing general complaints about a nation’s criminal justice system. By signing and ratifying the US-Russia MLAT, and by agreeing to honor Russia’s request in this case, the political branches of our government have determined that the Russian system of criminal justice in general comports with minimum constitutional guarantees. We will not upset that decision on the basis of Appellants’ broad unsupported allegations that the Russian criminal justice system as a whole is corrupt.
With respect to Appellants’ complaints concerning the treatment of Gontmakher specifically, Appellants’ arguments amount to no more than a complaint that, in their view, the Russian authorities have violated the Russian Code of Criminal Procedure by failing to produce evidence within a specified time period. Even assuming that their allegation is correct, granting the Russian government’s request for documents would not, for that reason alone, violate our Constitution’s separation of powers or guarantee of due process. Just as a violation of state law does not necessarily offend our Constitution, Parle v. Runnels,
In conclusion, we hold that compliance with the Russian government’s request for documents from Global Fishing does not offend the Constitution.
AFFIRMED.
Notes
. The parties have also directed our attention to MLATs with the Philippines (ratified in 1994), Mexico (ratified in 1987), and Italy (ratified in 1982).
. The same day, the United States Attorney's office also subpoenaed Global Fishing to produce the identical documents on behalf of a domestic grand jury, in furtherance of a crim
. Although this case involves an order issued under both the US-Russia MLAT and 28 U.S.C. § 1782, we see no difference, for purposes of finality, between a request arising under both an MLAT and § 1782, as compared to a request arising under § 1782 only. The treaty does not speak to whether a district court’s order is final for purposes of appellate jurisdiction. Stated differently, the government concedes that it obtained the subpoena by invoking the procedural mechanism of § 1782, and we view the finality analysis as a procedural question, not a substantive one.
. We also hold that this appeal is not moot. See Betker v. U.S. Trust Corp. (In re Heritage Bond Litig.),