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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

CASE NO. _____________________

IN RE: Request from Argentina Pursuant
to the Treaty Between the United States
of America and the Republic of Argentina
on Mutual Assistance in Criminal Matters in
the Matter of Rafael Elazar
_____________________________________/

MEMORANDUM OF LAW IN SUPPORT OF APPLICATION FOR ORDER

The United States is seeking an order appointing a person as a commissioner to collect

evidence requested by Argentina in its attached treaty request (the “Request”) made pursuant to the

Treaty between the United States of America and the Republic of Argentina on Mutual Assistance

in Criminal Matters, signed on December 4, 1990, entered into force February 9, 1993, (the “Treaty”)

and to seek other orders, as needed, to execute the Request as authorized by the Treaty and 18 U.S.C.

§ 3512.

A.

The Present Request

The Ministry of Justice of Argentina, the Central Authority under Article 1(1) of the Treaty,

makes this Request in connection with a criminal investigation by Ministerio de Relaciones

Exteriores, Comercio Internacional y Culto. According to Argentinian authorities, Argentinian

citizen Rafael Elazar is under investigation for fraud and the misapplication of funds. In his

capacity as financial consultant for Argentinian citizens Javier Enrique Pendzik, Moises

Pendzik, and Amalia Kulkin, Elazar allegedly falsified statements and misapplied funds

intended for foreign investment. His purportedly fraudulent activity resulted in the loss of

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$167,141.19 by the afore-mentioned clients, who believed that their money was invested in

Mellon United National Bank in Miami, Florida.

Based on this and other information, Argentinian law enforcement have asked for assistance

in seeking to specifically ascertain whether Javier Enrque Pendzik, Moises Pendzik, and/or Amalia

Kulkin were or are holders of accounts or investments at Mellon United National Bank from 1995

to the present. If so, certified copies of the account statements and documents related to the opening

of the account should be provided, as well as transaction, transfer, and withdrawal records for the

account holders. In addition, the Argentinian authorities seek to determine whether the enclosed

account statement, found on page ten of the Argentinian request, is genuine according to the records

of Mellon United National Bank.

Federal courts, pursuant to the Treaty, statute and their inherent authority, may issue orders

as may be necessary for the production of the evidence requested by Argentina including orders

appointing a person as a commissioner to gather such evidence and establishing the procedures for

the production of such evidence.

B.

Authority to Execute the Request

1.

The Treaty

A treaty constitutes the law of the land. U.S. Const. art. VI. The provisions of a treaty have

equal footing with acts of Congress and are binding on the courts. Asakura v. City of Seattle,

Washington, 265 U.S. 332, 341 (1924); United States v. The Peggy, 5 U.S. 103 (1801); In re

Commissioner’s Subpoenas, 325 F.3d 1287, 1291 (11th Cir. 2003). To the extent that the provisions

of a treaty are inconsistent with a preexisting statutory provision, the treaty supersedes the statute.

Zschernig, et al. v. Miller, Administrator, et al., 389 U.S. 429, 440-441 (1968); In re Commissioner’s

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Subpoenas, 325 F.3d 1287, 1305-1306 (11th Cir. 2003); United States v. Erato, 2 F.3d 11, 15-16 (2d

Cir. 1993).

The United States and Argentina entered into the Treaty “desiring to improve the

effectiveness of the law enforcement authorities of both countries in the investigation, prosecution,

and prevention of crime through cooperation and mutual legal assistance in criminal matters.”

Preamble to the Treaty. In accordance with the provisions of the Treaty, each state is obliged to

provide assistance to the other “in connection with the investigation, prosecution, and prevention of

offenses, and in proceedings related to criminal matters.” Article 1(1); In re Commissioner’s

Subpoenas, 325 F.3d 1287, 1290 (11th Cir. 2003). Each state contemplated that it would provide

the other with assistance generally comparable to that which is available to its own law enforcement

authorities, which assistance includes taking testimony or statements of persons, providing

documents and other evidence, and immobilizing criminally-obtained assets. Article 1(2); Barr v.

U. S. Department of Justice, 645 F. Supp. 235, 237 (E.D.N.Y. 1986), aff’d, 819 F.2d 25 (2d Cir.

1987).

The Treaty and 18 U.S.C. § 3512 empower federal courts to execute treaty requests in order

to comply with the United States’ treaty obligations. Article 5(1) provides that:

The Courts of the Requested State shall issue subpoenas, search warrants, or other
orders necessary to execute the request.

The Treaty contemplates that federal courts will use compulsory measures to execute such

requests. Article 8(1) provides that:

A person in the Requested State from whom testimony or evidence is requested
pursuant to this Treaty shall be compelled, if necessary, to appear and testify or
produce documents, records, or items.

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The Treaty imposes no dual criminality requirement as a precondition for providing

assistance. Consequently, each state party is obligated to provide assistance without regard to

whether the conduct under investigation or prosecution would constitute an offense under the laws

of the Requested State, except as otherwise provided by U.S. law. See Letter of Submittal of the

Treaty to the President from the Department of State.

2.

Statutory Authority Grounding Execution of Requests for Assistance

The Treaty is designed to be self-executing and requires no implementing legislation. See

Letter of Submittal of the Treaty to the President from the Department of State; In re

Commissioner’s Subpoenas, 325 F.3d 1287, 1291 (11th Cir. 2003). However, because the

procedural provisions in many treaties are minimal, in the past federal courts routinely utilized

procedures authorized by 28 U.S.C. § 1782 (the “commissioner” process) to execute treaty requests

from foreign authorities. In re Commissioner’s Subpoenas, 325 F.3d 1287, 1305-1306 (11th Cir.

2003). Substantive U.S. law regarding searches, seizures and other compulsory processes further

grounded the execution of such assistance requests.

On October 19, 2009, the President signed the Foreign Evidence Request Efficiency Act of

2009 (Public Law 111-79), enacting 18 U.S.C. § 3512, the full text of which is attached for the

convenience of this Court. Section 3512 explicitly authorizes a federal court to:

issue such orders as may be necessary to execute a request from a foreign authority
for assistance in the investigation or prosecution of criminal offenses, or in
proceedings related to the prosecution of criminal offenses, including proceedings
regarding forfeiture, sentencing, and restitution.

Section 3512 directly empowers the federal courts to execute such requests and separately codifies

under Title 18 the longstanding practice and procedures employed by the United States and the

federal courts to execute requests by foreign authorities for assistance to the fullest extent possible

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under U.S. law. Congress enacted Section 3512 to make it “easier for the United States to respond

to these requests by allowing them to be centralized and by putting the process for handling them

within a clear statutory scheme.” 155 CONG. REC. S6,810 (2009)(Statement of Sen. Whitehouse).

C.

Execution of Foreign Requests for Assistance Under the Treaty and Section 3512

1.

Authorization of the Application to This Court

Section 3512 provides:

Upon application, duly authorized by an appropriate official of the Department of
Justice, of an Attorney for the Government, a Federal judge may issue such orders
as may be necessary to execute a request from a foreign authority for assistance in the
investigation and prosecution of criminal offenses, or in proceedings related to the
prosecution of criminal offenses, including proceedings regarding forfeiture,
sentencing and restitution.

For purposes of Section 3512, an application is “duly authorized by an appropriate official of the

Department of Justice” when the Department of Justice, Criminal Division, Office of International

Affairs, has reviewed and authorized the request and is executing the request itself or has delegated

the execution to another attorney for the government. In this matter, such authorization and

delegation is evidenced by a letter dated July 30, 2010 from the Department of Justice, Criminal

Division, Office of International Affairs, received by the United States Attorney, transmitting the

Request to this district for execution.

Section 3512(c) authorizes filing the instant application in this district, where the majority

(or all) of the evidence is located.

2.

Foreign Authority Seeking Assistance Within Section 3512 and the Treaty

As to the “foreign authority” making the Request, Section 3512(h) provides:

The term “foreign authority” means a foreign judicial authority, a foreign authority
responsible for the investigation or prosecution of criminal offenses or for
proceedings related to the prosecution of criminal offenses, or an authority designated

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as a competent authority or central authority for the purpose of making requests for
assistance pursuant to an agreement or treaty with the United States regarding
assistance in criminal matters.

In this matter the Ministry of Justice is the designated Central Authority in Argentina for requests

made pursuant to the Treaty.

As evidenced by the Request itself and confirmed in the authorization process and again by

the undersigned, consistent with Section 3512(a)(1), the foreign authority seeks assistance in the

investigation or prosecution of criminal offenses or in proceedings related to the prosecution of

criminal offenses.

3.

Authority of the Federal Courts Under Section 3512

When enacting Section 3512, Congress intended that federal courts facilitate to the fullest

extent possible the execution of requests by foreign authorities for assistance in criminal matters and

endeavored to streamline and expedite the execution of such requests. Section 3512 authorizes

federal courts to issue “such orders as may be necessary to execute a request” and specifically

includes: orders for search warrants pursuant to Federal Rule of Criminal Procedure 41; orders for

stored wire or electronic communications and related evidence under 18 U.S.C. § 2703; orders for

pen registers and trap and trace devices under 18 U.S.C. § 3123; orders for the provision of

testimony or a statement or the production of documents or other things, or both; and orders

appointing “a person” to direct the taking of testimony or statements or the production of documents

or other things, or both. 18 U.S.C. § 3512(a)(1), (2).

The assistance requested by Argentina pursuant to the Treaty by its Ministry of Justice in the

instant Request falls squarely within that contemplated by both the Treaty and Section 3512.

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D.

Appointment of a Person as Commissioner to Collect Evidence

1.

Statutory Authorization

Section 3512(b) provides that a federal judge may “issue an order appointing a person to

direct the taking of testimony or statements or of the production of documents or other things, or

both.” The statute further authorizes the person appointed to issue orders requiring the appearance

of a person, or the production of documents or other things, or both; administer any necessary oath;

and take testimony or statements and receive documents or other things. Commensurate with past

practice under 28 U.S.C. § 1782, it is anticipated that a federal court would appoint an attorney for

the government, typically a federal prosecutor, as “commissioner.”

2.

Procedures for Evidence Collection

Section 3512 (a) specifically empowers a federal judge to issue “such orders as may be

necessary” to execute the request. This authorization encompasses orders specifying the procedures

to be used to collect particular evidence, including procedures requested by the foreign authority to

facilitate its later use of the evidence. In executing a request made pursuant to a treaty, a court has

the obligation to prescribe effective and expeditious procedures designed to promote the purpose of

the treaty. See In re Commissioner’s Subpoenas, 325 F.3d 1287, 1305 (11th Cir. 2003). Nothing

in Section 3512 suggests any limitation on a court’s power to exercise “complete discretion in

prescribing the procedure to be followed” as was available under 28 U.S.C. § 1782. In re Letter of

Request from the Crown Prosecution Service of the United Kingdom, 870 F.2d 686, 693 (D.C. Cir.

1989), citing 1964 U.S.C.C.A.N. at 3789. See White v. National Football League, et al., 41 F.3d

402, 409 (8th Cir. 1994), cert. denied, 515 U.S. 1137 (1995) (a court may issue whatever process it

deems necessary to facilitate disposition of a matter before it); FED.R.CRIM.P. 57(b).

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a.

Procedures Authorized by Other Statutes

In addition, Section 3512 references specific U.S. laws for obtaining certain evidence and,

by doing so, adopts any statutorily mandated procedures in relation to obtaining orders for search

warrants; orders for contents of stored wire or electronic communications or for records related

thereto; and orders for a pen register or a trap and trace device.

b.

Orders by the Person Appointed: Commissioner’s Subpoenas

Section 3512 authorizes the “person” appointed (here, and in past practice under 28 U.S.C.

§ 1782, the “commissioner”) to issue orders “requiring the appearance of a person, or the production

of documents or other things or both.” Further, Article 5 (1) of the Treaty provides for the issuance

of procedural documents, such as subpoenas, to gather evidence:

The Courts of the Requested State shall issue subpoenas, search warrants, or other
orders necessary to execute the request.

If a federal district court so orders, the commissioner may use the attached form, still entitled

“commissioner’s subpoena,” to obtain the requested evidence. See In re Commissioner’s Subpoenas,

325 F.3d 1287, 1291 (2d Cir. 1993) (incorporating in pertinent part a district court’s order directing

use of commissioner’s subpoenas); United States v. Erato, 2 F.3d 11, 13-14 (2d Cir. 1993) (same).

This commissioner’s subpoena is simply a version of the “order” to be issued by the person

appointed by the court under Section 3512 to direct the production of evidence. Section 3512

expressly authorizes the service and enforcement of such orders, or commissioner’s subpoenas,

anywhere in the United States (i.e., coextensive with the service of subpoenas in U.S. criminal

investigations and prosecutions).

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c.

Notice of Evidence Taking

As an initial matter, this application is being made ex parte, consistent with U.S. practice in

its domestic criminal matters and its prior practice on behalf of foreign authorities under 28 U.S.C.

§ 1782. In re Letter of Request from the Crown Prosecution Service of the United Kingdom, 870

F.2d 686, 688 (D.C. Cir. 1989); In re Letters Rogatory from the Tokyo District, Tokyo, Japan, 539

F.2d 1216, 1219 (9th Cir. 1976).

Both Section 3512 and the Treaty at Article 8(1) authorize use of compulsory process in the

execution of treaty requests comparable or similar to that used in domestic criminal investigations

or prosecutions. Because subpoenas utilized in U.S. criminal proceedings (i.e., grand jury and

criminal trial subpoenas) are issued without notice to any party other than the recipients (i.e., no

notice to targets or defendants), orders and commissioner’s subpoenas issued in execution of treaty

requests pursuant to Section 3512 and the applicable treaty likewise should require no notice other

than to the recipients. In the absence of a specific request to provide notice, a district court and U.S.

authorities can assume that a requesting foreign authority has provided such notice as the foreign law

requires, or that foreign law does not require notice and the requesting foreign authority does not

consider notice to be necessary or useful. Accordingly, a federal district court should authorize a

commissioner to collect the evidence requested without notice to any party other than the recipient

of the commissioner’s subpoena except to the extent that a request asks for specific notice

procedures.

d.

Right to Financial Privacy Act

The Right to Financial Privacy Act, 12 U.S.C. §§ 3401 et seq., does not apply to execution

of foreign legal assistance requests. Young v. U.S. Dept. of Justice, 882 F.2d 633, 639 (2d Cir.

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1989), cert. denied, 493 U.S. 1072 (1990); In re Letter of Request for Judicial Assistance from the

Tribunal Civil de Port-Au-Prince, Republic of Haiti, 669 F. Supp. 403, 407 (S.D. Fla. 1987); In re

Letters of Request from the Supreme Court of Hong Kong, 821 F.Supp. 204, 211 (S.D.N.Y. 1993).

Consequently, to the extent that execution of a request entails production of bank or financial

records, notice provisions of the Act do not apply, and the commissioner need not give, nor arrange

for the custodian of records to give, notice to an account holder. (Note that the Act itself applies

only to accounts maintained in a person’s name and not to corporate, perhaps even partnership,

accounts. United States v. Daccarett, 6 F.3d 37, 50-52 (2d Cir. 1993).)

Conclusion

The instant Request is exactly the type of request contemplated for execution under Section

3512. In its sequential legislative efforts relevant to the provision of assistance to foreign authorities,

Congress has intended that the United States set an example to other nations by making judicial

assistance generously available. See, e.g., In re Request for Assistance from Ministry of Legal

Affairs of Trinidad and Tobago, 848 F.2d 1151, 1153-1154 (11th Cir. 1988), cert. denied, 488 U.S.

1005 (1989). Section 3512 enables the United States to respond “more quickly . . . to foreign

evidence requests. These efforts will assist the United States with its investigations as foreign

authorities will be urged to respond in kind to our evidence requests in a speedy manner.” 155

CONG. REC. H10,093 (2009)(Statement of Rep. Schiff).

Accordingly, to execute this Request, the United States moves this Court to issue the attached

order pursuant to the Treaty and 18 U.S.C. § 3512 appointing the undersigned Assistant U.S.

Attorney as commissioner, authorizing her to take the actions necessary, including the issuance of

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commissioner’s subpoenas, to obtain the evidence requested, to adopt such procedures in receipt of

the evidence as are consistent with the intended use thereof in Argentina.

WHEREFORE, the United States requests that the Court enter the proposed order.

Respectfully submitted,



WIFREDO A. FERRER
UNITED STATES ATTORNEY










By:

/s/ Rosa Rodriguez-Mera
ROSA RODRIGUEZ-MERA
ASSISTANT UNITED STATES ATTORNEY
Court No. A5500131
99 NE 4 Street
Miami, Florida 33132
Telephone No. (305) 961-9277
Facsimile No. (305) 530-6168
E-Mail: [email protected]

th



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United States Code Effective: October 19, 2009
Title 18. Crimes and Criminal Procedure
Part II. Criminal Procedure
Chapter 223. Witnesses and Evidence
§ 3512. Foreign requests for assistance in criminal investigations and prosecutions

(a) Execution of request for assistance.--

(1) In general.--Upon application, duly authorized by an appropriate official of the Department of
Justice, of an Attorney for the Government, a Federal judge may issue such orders as may be
necessary to execute a request from a foreign authority for assistance in the investigation or
prosecution of criminal offenses, or in proceedings related to the prosecution of criminal offenses,
including proceedings regarding forfeiture, sentencing, and restitution.

(2) Scope of orders.--Any order issued by a Federal judge pursuant to paragraph (1) may include the
issuance of--

(A) a search warrant, as provided under Rule 41 of the Federal Rules of Criminal Procedure;

(B) a warrant or order for contents of stored wire or electronic communications or for records related
thereto, as provided under section 2703 of this title;

(C) an order for a pen register or trap and trace device as provided under section 3123 of this title;
or

(D) an order requiring the appearance of a person for the purpose of providing testimony or a
statement, or requiring the production of documents or other things, or both.

(b) Appointment of persons to take testimony or statements.--

(1) In general.--In response to an application for execution of a request from a foreign authority as
described under subsection (a), a Federal judge may also issue an order appointing a person to direct
the taking of testimony or statements or of the production of documents or other things, or both.

(2) Authority of appointed person.--Any person appointed under an order issued pursuant to
paragraph (1) may--

(A) issue orders requiring the appearance of a person, or the production of documents or other things,
or both;

(B) administer any necessary oath; and

(C) take testimony or statements and receive documents or other things.

(c) Filing of requests.--Except as provided under subsection (d), an application for execution of a
request from a foreign authority under this section may be filed--

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(1) in the district in which a person who may be required to appear resides or is located or in which
the documents or things to be produced are located;

(2) in cases in which the request seeks the appearance of persons or production of documents or
things that may be located in multiple districts, in any one of the districts in which such a person,
documents, or things may be located; or

(3) in any case, the district in which a related Federal criminal investigation or prosecution is being
conducted, or in the District of Columbia.

(d) Search warrant limitation.--An application for execution of a request for a search warrant from
a foreign authority under this section, other than an application for a warrant issued as provided
under section 2703 of this title, shall be filed in the district in which the place or person to be
searched is located.

(e) Search warrant standard.--A Federal judge may issue a search warrant under this section only if
the foreign offense for which the evidence is sought involves conduct that, if committed in the
United States, would be considered an offense punishable by imprisonment for more than one year
under Federal or State law.

(f) Service of order or warrant.--Except as provided under subsection (d), an order or warrant issued
pursuant to this section may be served or executed in any place in the United States.

(g) Rule of construction.--Nothing in this section shall be construed to preclude any foreign authority
or an interested person from obtaining assistance in a criminal investigation or prosecution pursuant
to section 1782 of title 28, United States Code.

(h) Definitions.--As used in this section, the following definitions shall apply:

(1) Federal judge.--The terms "Federal judge" and "Attorney for the Government" have the meaning
given such terms for the purposes of the Federal Rules of Criminal Procedure.

(2) Foreign authority.--The term "foreign authority" means a foreign judicial authority, a foreign
authority responsible for the investigation or prosecution of criminal offenses or for proceedings
related to the prosecution of criminal offenses, or an authority designated as a competent authority
or central authority for the purpose of making requests for assistance pursuant to an agreement or
treaty with the United States regarding assistance in criminal matters.

(Added Pub.L. 111-79, § 2(4), Oct. 19, 2009, 123 Stat. 2087.)
18 U.S.C.A. § 3512, 18 USCA § 3512
Current through P.L. 111-86 (excluding P.L. 111-84) approved 10-29-09

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