## Facts

- Canadian authorities conducting a criminal investigation requested U.S. assistance to obtain testimony from seven witnesses residing in the Southern District of Florida.
- The request was made before any formal Canadian charges were filed (pre-indictment stage).
- A federal district court appointed a commissioner to execute the request, and the commissioner issued subpoenas to compel the witnesses’ testimony.
- The witnesses moved to quash the subpoenas, arguing the request did not meet statutory requirements because the testimony was sought for an investigation rather than an adjudicative proceeding, and because Canadian law would not admit compelled pre-indictment testimony at a criminal trial.
- A magistrate judge quashed the subpoenas, reasoning that 28 U.S.C. § 1782 requires evidence “for use in a proceeding in a foreign or international tribunal,” and that the Canadian request did not satisfy that requirement.
- The district court affirmed the order quashing the subpoenas, and the United States appealed.

## Issues

1. Whether the U.S.–Canada Mutual Legal Assistance Treaty obligates the United States to compel witness testimony for a Canadian criminal investigation before formal charges are filed.
2. Whether § 1782, used as the procedural mechanism to execute the treaty request, permits subpoenas for investigative-stage testimony or instead requires a pending or imminent adjudicative proceeding.
3. Whether a U.S. court may deny treaty-based assistance because the requested compelled testimony may be inadmissible at trial under the requesting country’s law.

## Decision

- The Eleventh Circuit reversed the district court’s order quashing the subpoenas.
- The court held the treaty requires the United States, upon Canada’s request, to execute subpoenas to compel testimony for criminal investigations, including at the pre-indictment stage.
- The court rejected the view that § 1782 requires an ex ante showing that the testimony would be admissible at a foreign criminal trial.
- The case was remanded for enforcement of the subpoenas consistent with the treaty request and § 1782 procedures.

## Legal Principles

- A mutual legal assistance treaty that expressly covers “investigation” can obligate U.S. authorities to provide compulsory process for evidence gathering even before formal criminal charges are filed abroad.
- When § 1782 is used to implement treaty requests, it functions as a procedural vehicle and should be construed consistently with the treaty’s substantive commitment to investigative assistance.
- U.S. courts generally should not condition treaty-based assistance on a detailed determination that the requested evidence will be admissible under the requesting nation’s evidentiary rules.
- Evidence may be “for use” in a foreign criminal matter within the treaty-implementation context even if sought primarily for investigative utility rather than immediate presentation in a foreign tribunal.

## Conclusion

The Eleventh Circuit required enforcement of subpoenas issued to obtain pre-charge investigative testimony for Canada under the U.S.–Canada MLAT, holding that § 1782 does not permit refusal of assistance based on the testimony’s potential inadmissibility under Canadian trial rules.


In re Commissioner’s Subpoenas, 325 F.3d 1287 (11th Cir. 2003)