Case 1:21-ml-00887-RBC Document 1 Filed 10/13/21 Page 1 of 7

UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA__________________________________________)IN RE APPLICATION OF USA PURSUANT)TO 18 U.S.C. § 3512 FOR ORDER FOR)COMMISSIONER’S APPOINTMENT FOR)MONEY LAUNDERING INVESTIGATION))__________________________________________)
Reference:

ML No: 1:21-ML-00887

DOJ Ref. # CRM-182-77215

APPLICATION OF THE UNITED STATES FOR AN ORDERFOR A COMMISSIONER’S APPOINTMENT PURSUANT TO 18 U.S.C. § 3512
The United States of America, moving by and through its undersigned counsel,
respectfully submits this ex parte application for an Order, pursuant to 18 U.S.C. § 3512,
appointing the undersigned attorney, Rachel G. Hertz, Trial Attorney, Office of International
Affairs, Criminal Division, U.S. Department of Justice (or a substitute or successor subsequently
designated by the Office of International Affairs), as a commissioner to collect evidence and totake such other action as is necessary to execute this and any subsequent, supplemental requests
for assistance with the above-captioned criminal matter from the United Arab Emirates (UAE).
In support of this application, the United States asserts:
RELEVANT FACTS
1.

The Ministry of Justice of the United Arab Emirates submitted a request forassistance (the Request) to the United States, pursuant to the principles of comity and reciprocity.
2.

As stated in the Request, the Dubai Public Prosecution Office in the UAE isinvestigating multiple targets for money laundering, which occurred in or about January 2020, inviolation of the criminal law of the UAE, specifically, Articles 1, 2a c, 4, 5/2-1, 1/6, 100, 21,Case 1:21-ml-00887-RBC Document 1 Filed 10/13/21 Page 2 of 7

22/1 paragraph a, c, 2, 23, 26, 29/1-2-3-4) of Federal Penal Code No. (20) of 2018. Although theUnited States has no treaty obligation to assist the UAE, it generally does so as a matter ofcomity.
3.

According to Emirati authorities, on January 15, 2020, the Victim Company’s

branch manager received a phone call that claimed to be from the company headquarters. Thecaller sounded like the Director of the company, so the branch manager believed the call waslegitimate. The branch manager also received several emails that he believed were from theDirector that were related to the phone call. The caller told the branch manager by phone andemail that the Victim Company was about to acquire another company, and that a lawyer named
Martin Zelner (Zelner) had been authorized to coordinate procedures for the acquisition. The
branch manager then received several emails from Zelner regarding the acquisition, including aletter of authorization from the Director to Zelner. Because of these communications, whenZelner asked the branch manager to transfer USD 35 million to several accounts as part of theacquisition, the branch manager followed his instructions. The Emirati investigation revealed
that the defendants had used “deep voice” technology to simulate the voice of the Director. InJanuary 2020, funds were transferred from the Victim Company to several bank accounts inother countries in a complex scheme involving at least 17 known and unknown defendants.
Emirati authorities traced the movement of the money through numerous accounts and identified
two transactions to the United States. On January 22, 2020, two transfers of USD 199,987.75
and USD 215,985.75 were sent from two of the defendants to Centennial Bank account numbers,xxxxx7682 and xxxxx7885, respectively, located in the United States.

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4.

To further the investigation, Emirati authorities have asked U.S. authorities toprovide bank records and information pertaining to Centennial Bank account numbers,
xxxxx7682 and xxxxx7885.
LEGAL BACKGROUND
5.

When executing a treaty or non-treaty request for assistance from a foreignauthority, an attorney for the government may file an application to obtain any requisite court
orders under 18 U.S.C. § 3512. This section authorizes a federal court to issue such orders andprovides in pertinent part:
Upon application, duly authorized by an appropriate official of the Department ofJustice, 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 tothe prosecution of criminal offenses, including proceedings regarding forfeiture,sentencing, and restitution.
***[A]n application for execution of a request from a foreign authority under thissection may be filed . . . in the District of Columbia.
***

The term “foreign authority” means a foreign judicial authority, a foreignauthority responsible for the investigation or prosecution of criminal offenses orfor 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.
18 U.S.C. § 3512(a)(1), (c)(3), (h)(2).
6.

Congress enacted this section to make it “easier for the United States to respondto [foreign] requests by allowing them to be centralized and by putting the process for handlingthem within a clear statutory scheme.” 155 Cong. Rec. 6,810 (2009) (statement of Sen.
Whitehouse); Foreign Evidence Request Efficiency Act of 2009, Pub. L. No. 111-79, 123 Stat.
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2086. 1 This section provides clear authority for the federal courts, upon application dulyauthorized by an appropriate official of the Department of Justice, to issue orders that arenecessary to execute a foreign request.
7.

An application is duly authorized by an appropriate official of the Department ofJustice when the Office of International Affairs 2 has reviewed and authorized the request, andexecutes the request itself or delegates execution to another attorney for the government. 3 Uponsuch a duly authorized application, Section 3512 authorizes a federal judge 4 to issue “such orders
as may be necessary to execute [the] request,” including: (1) search warrants under Fed. R.
Crim. P. 41; (2) orders for electronic records under 18 U.S.C. § 2703; (3) orders for pen registers
or trap and trace devices under 18 U.S.C. § 3123; and (4) orders appointing a person to direct thetaking of testimony or statements and/or the production of documents or other things. See 18U.S.C. § 3512(a)(1)--(b)(1). In addition, a federal judge may order any necessary procedures to1Prior to the enactment of 18 U.S.C. § 3512, the United States routinely utilized the procedures
authorized by 28 U.S.C. § 1782 (the “commissioner” process) to execute requests from foreignauthorities. See In re Request from the United Kingdom, 685 F.3d 1, 11 (1st Cir. 2012) (18 U.S.C. §3512 provides a more streamlined process than 28 U.S.C. § 1782, the statute under which foreign requests
were executed prior to enactment of section 3512); see also Intel Corp. v. Advanced Micro Devices, Inc.,
542 U.S. 241, 247-49 (2004) (describing history of Section 1782). When enacting Section 3512,Congress anticipated that improved U.S. handling of foreign requests would ensure reciprocity inresponse to U.S. requests for assistance in its criminal investigations. See, e.g., 155 Cong. Rec. 10,093(2009) (statement of Rep. Schiff).
2

The Attorney General, through regulations and Department of Justice directives, delegated to the Officeof International Affairs the authority to serve as the “Central Authority” under treaties and executive
agreements between the United States and other countries pertaining to mutual assistance in criminal
matters. See 28 C.F.R. 0.64-1, 0.64-4, and Appendix to Subpart K, Directive Nos. 81B and 81C (2018).
“Section 3512 can be invoked only when authorized by OIA. . . . Such authorization occurs when an
attorney for the government, or his or her office, receives the referral of the request for execution fromOIA.” Memorandum from the Deputy Attorney General to Department of Justice Components (May 16,2011) (on file with the Office of International Affairs).

3The term “federal judge” includes a magistrate judge. See 18 U.S.C. § 3512(h)(1); Fed. R. Crim. P.
1(b)(3)(B) (including a magistrate judge in the definition of federal judge).
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facilitate the execution of the request, including any procedures requested by the foreignauthority to facilitate its use of the evidence. 18 U.S.C. § 3512(a)(1).
8.

Section 3512 also authorizes any person appointed to direct the taking of

testimony or statements and/or the production of documents. The appointed person has authority
to: (1) issue an order requiring a person to appear and/or produce documents or other things; (2)administer any necessary oaths; and (3) take testimony or statements and receive documents orother things. 18 U.S.C. § 3512(b)(2). In ordering a person to appear and/or produce documents
or other things, the person appointed, commonly referred to as the “commissioner,” typicallyuses a subpoena entitled “Commissioner’s Subpoena.” Any such subpoena may be served orexecuted anywhere in the United States. 18 U.S.C. § 3512(f).
REQUEST FOR ORDER
9.

The Office of International Affairs has reviewed and authorized the Request, andis executing the Request itself. Consequently, this application for an Order appointing theundersigned attorney as a commissioner to collect evidence and to take such other action as isnecessary to execute the Request has been “duly authorized” within the meaning of Section
3512. In addition, the Request was submitted by an appropriate “foreign authority,” the Ministryof Justice of the United Arab Emirates, in the UAE and seeks assistance in the investigation ofmoney laundering – a criminal offense in the UAE. The requested Order is necessary to executethe Request, and the assistance requested, i.e., the production of bank records, falls squarely
within that contemplated by Section 3512. Finally, this application was properly filed in theDistrict of Columbia.

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10.

This application is being made ex parte, consistent with U.S. practice in its

domestic criminal matters.
11.

When executing a foreign request for assistance in a criminal matter, Section

3512 authorizes the use of compulsory process comparable to that used in domestic criminal
investigations and/or prosecutions. Because subpoenas utilized in U.S. criminal proceedings(i.e., grand jury and criminal trial subpoenas) are issued without notice to any person other than
the recipient (i.e., no notice to targets or defendants), orders and commissioner subpoenas issued
in execution of a foreign request pursuant to Section 3512 likewise should require no noticeother than to the recipients. This is true even if the Requesting State, as here, seeks financial
records, because the Right to Financial Privacy Act, 12 U.S.C. §§ 3401 et seq., including its
notice provisions, does not apply to the execution of foreign requests for legal assistance. Youngv. U.S. Dept. of Justice, 882 F.2d 633, 639 (2d Cir. 1989), cert. denied, 493 U.S. 1072 (1990); In
re Letters of Request from the Supreme Court of Hong Kong, 821 F. Supp. 204, 211 (S.D.N.Y.
1993); 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). Accordingly, this Court shouldauthorize a commissioner to collect the evidence requested without notice to any person(s) orentity(ies) other than the recipient(s) of any given commissioner subpoena.
12.

Therefore, the United States respectfully requests that this Court issue theattached Order, pursuant to 18 U.S.C. § 3512, appointing the undersigned attorney, Rachel G.
Hertz, Trial Attorney, Office of International Affairs (or a substitute or successor subsequently
designated by the Office of International Affairs) as a commissioner, authorizing the undersigned
to take the actions necessary, including the issuance of commissioner’s subpoenas, as needed, tocollect the evidence necessary to execute any pending request for assistance and any subsequent,6Case 1:21-ml-00887-RBC Document 1 Filed 10/13/21 Page 7 of 7

supplemental requests in connection with the same matter, in a manner consistent with theintended use of the evidence.
Respectfully submitted,
VAUGHN A. ARY
DIRECTOROFFICE OF INTERNATIONAL AFFAIRSOK Bar Number 12199

By:____________________________
Rachel G. Hertz
Trial Attorney
DC Bar Number 1531273
Office of International Affairs
Criminal Division, Department of Justice1301 New York Avenue, N.W.
Washington, D.C. 20530(202) 616-2871
Rachel.Hertz@usdoj.gov

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Case 1:21-ml-00887-RBC Document 1-1 Filed 10/13/21 Page 1 of 2

UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA))))))__________________________________________)IN RE APPLICATION OF USA PURSUANT
TO 18 U.S.C. § 3512 FOR ORDER FOR
COMMISSIONER’S APPOINTMENT FOR
MONEY LAUNDERING INVESTIGATION

Reference:

ML No: 1:21-ML-00887

DOJ Ref. # CRM-182-77215ORDER

Upon application of the United States seeking an order, pursuant to 18 U.S.C. § 3512,
appointing Rachel G. Hertz, Trial Attorney, Office of International Affairs, Criminal Division,
U.S. Department of Justice (or a substitute or successor subsequently designated by the Office ofInternational Affairs), as a commissioner to execute the above-captioned request from the United
Arab Emirates (UAE) (the Request) to collect evidence for use in a criminal investigation,prosecution, or proceeding in the UAE, and any subsequent, supplemental requests, and theCourt having fully considered this matter,
IT IS THEREFORE ORDERED, pursuant to the authority conferred by 18 U.S.C. §3512, that Rachel G. Hertz (or a substitute or successor designated by the Office of InternationalAffairs) is appointed as a commissioner of this Court (the commissioner) and is directed toexecute the Request and any subsequent, supplemental requests made by the UAE in connection
with the above-captioned investigation and prosecution and to take such steps as are necessary tocollect the evidence requested in this or any subsequent, supplemental requests in connection
with the same criminal matter. In doing so, the commissioner:

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1.

may issue commissioner’s subpoenas to be served at any place within the UnitedStates on persons (natural and legal) ordering them or their representatives to appear and to
testify and/or produce evidence located within the United States;2.

shall adopt procedures to collect the evidence requested consistent with its use in

the investigation, prosecution, or proceeding in the UAE for which the Dubai Public Prosecution
Office has requested assistance, which may be specified in the Request or subsequent requests inthis matter or provided by, or with the approval of, the Ministry of Justice of the United ArabEmirates;
3.

may, in collecting the evidence requested, be assisted by persons whose presenceor participation is authorized by the commissioner, including, without limitation, individuals
employed by U.S. law enforcement agencies and/or representatives of the UAE who, asauthorized or directed by the commissioner, may direct questions to any witness;4.

may seek such further orders of this Court as may be necessary to execute thisRequest, or subsequent requests in this matter including orders to show cause why persons
served with commissioner’s subpoenas who fail to appear and/or produce evidence should not beheld in contempt; and6.

shall transmit the evidence collected to the UAE.

Date: ________________________________________________UNITED STATES MAGISTRATE JUDGE2