## Facts

- The United States and the Russian Federation entered a Mutual Legal Assistance in Criminal Matters Treaty (MLAT) providing assistance mechanisms for criminal investigations, including subpoenas and search warrants.
- Russia sought U.S. assistance in its criminal investigation and prosecution of Arkadi A. Gontmakher for alleged illegal crabbing.
- Gontmakher, a U.S. citizen, was president of Global Fishing, Inc., which possessed documents Russia requested.
- The U.S. Department of Justice applied in the Western District of Washington for process to obtain the requested evidence, and the district court issued a subpoena duces tecum to Global Fishing.
- Global Fishing and Gontmakher sought a protective order that would have effectively quashed the subpoena, arguing the Russian proceeding was corrupt and illegal and that the district court retained broad discretion under 28 U.S.C. § 1782 to deny or limit the request.
- The district court denied the protective order and allowed enforcement of the subpoena.

## Issues

1. When the Executive Branch executes an MLAT request by seeking relief under 28 U.S.C. § 1782, how much discretion does a district court have to deny or shape the requested evidence gathering?
2. May a district court refuse MLAT-based assistance because the target alleges the foreign investigation or prosecution is corrupt, unfair, or illegal?

## Decision

- The Ninth Circuit affirmed the district court’s order denying the protective order and enforcing the subpoena.
- In MLAT-execution cases, the district court’s discretion under § 1782 is materially constrained by the treaty framework and separation-of-powers considerations.
- Allegations that the foreign criminal proceeding is corrupt or illegal do not, without an identified statutory, treaty-based, privilege-based, or constitutional limitation, justify denying assistance.

## Legal Principles

- Section 1782 authorizes federal courts to order production of evidence for use in foreign proceedings, including pre-accusation criminal investigations, subject to “any legally applicable privilege.”
- In non-treaty § 1782 applications, courts may consider discretionary factors recognized by the Supreme Court, but MLAT-based requests differ because the Executive has already made a foreign-relations judgment to honor the request.
- In executing an MLAT request, the judicial role centers on enforcing process consistent with § 1782, the treaty’s terms, applicable privileges, and U.S. constitutional constraints, not on assessing the legitimacy of the foreign prosecution.
- Separation of powers limits judicial intrusion into foreign-affairs determinations embedded in treaty execution; courts should avoid converting MLAT assistance proceedings into collateral reviews of a foreign justice system.

## Conclusion

The Ninth Circuit upheld enforcement of a subpoena issued under § 1782 to fulfill an MLAT request from Russia, holding that courts have limited discretion to refuse treaty-based assistance and may not deny enforcement based solely on allegations that the foreign prosecution is corrupt or illegal absent a specific statutory, treaty, privilege, or constitutional bar.


In re Request from the Russian Federation Pursuant to the Treaty Between the United States and the Russian Federation, 634 F.3d 557 (9th Cir. 2011)