UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

CASE NO. ________________________ 

 

IN RE APPLICATION OF THE 

UNITED STATES OF AMERICA FOR 

AN ORDER PURSUANT TO 

18 U.S.C. § 3512 

 

Request from Poland for Assistance in a 

Criminal Matter: DOJ No. CRM-182-64604 

__________________________________________/ 

APPLICATION OF THE UNITED STATES 

FOR AN ORDER PURSUANT TO 18 U.S.C. § 3512 

 The United States of America by and through its undersigned Assistant United States 

Attorney, respectfully submits this ex parte application for an Order, pursuant to 18 U.S.C. 

§ 3512, appointing the undersigned Assistant United States Attorney, Yara Klukas, of the United 

States Attorney’s Office (or a substitute or successor subsequently designated by the United States 

Attorney’s office), as a commissioner to collect evidence from witnesses and to take such other 

action as is necessary to execute a request for assistance in a criminal matter from the Republic of 

Poland (hereinafter, “Poland”). In support of this application, the United States asserts: 

RELEVANT FACTS 

 1. The Polish National Prosecutor’s Office submitted a request for assistance 

(hereinafter, the “Request”) to the United States, pursuant to the Treaty Agreement Between the 

United States of America and the Republic of Poland on Mutual Legal Assistance in Criminal 

Matters signed 10 July 1996, pursuant to Article 3(2) of the Agreement on Mutual Legal Assistance 

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Between the United States of America and the European Union signed at Washington 25 June 

2003, Pol.-U.S., June 9, 2006, S. TREATY DOC. NO. 109-13 (hereinafter, the “Treaty”). 

 2. As stated in the Request, the Circuit Prosecutor’s Office in Krakow, III Department 

for Business Crime is investigating criminal offenses, specifically misappropriation and exceeding 

authority, which occurred on or about July 22, 2003-July 10, 2017, in violation of the criminal law 

of Poland, namely, Articles 284, Paragraph 2 and Article 294 Paragraph 2 of the Polish Criminal 

Code. A copy of the applicable law is included as Attachment A. Under the Treaty, the United 

States is obligated to render assistance in response to the Request. 

 3. According to authorities in Poland, in 2003, the “Victim” granted Jacek Hess and 

Maria Hess a jointly and individually power of attorney to sell her shares in a property located in 

Krakow. The power of attorney granted the Hesses authority to sell the Victim’s shares of the 

property at a price and on terms and conditions at their discretion. The “Victim” also entrusted 

them with the management and administration of the property. On December 12, 2008, Jacek 

Hess died. 

4. Between August 18, 2015 and March 14, 2017, Maria Hess acting under the power 

of attorney sold four units to Marcin Liszka. Furthermore, on April 26, 2016, Maria Hess acting 

as the “Victim’s” proxy granted Liszka a substitute power of attorney to act on her behalf. 

5. On July 10, 2017, Jozef Bozek, claiming that the “Victim” had recently granted 

him power of attorney and serving as administrator of her assets, notified the prosecutor’s office 

in Krakow that the “Victim” had revoked the powers of attorney issued to the Hesses, first in 2008 

and then again in 2011 (before the sales of “Victim’s” units to Marcin Liszka), and had informed 

them accordingly. Therefore, Maria Hess was allegedly not authorized to sell the “Victim’s four 

units around 2015-2017. Moreover, Maria Hess had allegedly neither informed the “Victim” of 

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the sales nor did she transfer the money from the sales of the units, rent payments, and fees to the 

“Victim.” 

6. However, Maria Hess asserts that her power of attorney was never revoked and that 

she only learned about it in 2017 when Jozef Bozek’s attorney, Piotr Prugar, visited her and 

forwarded her the revocation of the power of attorney dated in 2011. The “Victim” allegedly 

suffered losses of at least 630,000 Polish Zlotys approximately $166,000 dollars. The “Victim” has 

Alzheimer’s disease and is confined to a nursing home. Due to her progressively deteriorating medical 

condition, she could not participate in an interview nor could her husband provide any medical 

documentation. 

 7. To further the investigation, Polish authorities submitted a request to interview one of 

the “Victim’s” known doctors located in this district to determine when the “Victim” began suffering 

from Alzheimer disease and specifically whether she had the mental capacity to sign and revoke power 

of attorney documents and granting authorization to sell her shares on her behalf.

LEGAL BACKGROUND 

The Treaty 

8. A treaty constitutes the law of the land. U.S. Const. art. VI, cl.2. The provisions 

of a treaty have equal footing with acts of Congress and are binding on the courts. See Asakura v. 

City of Seattle, 265 U.S. 332, 341 (1924); United States v. The Peggy, 5 U.S. 103 (1801); United 

States v. Emuegbunam, 268 F.3d 377, 389 (6th Cir. 2001). The provisions of a treaty should be 

construed liberally “to give effect to the purpose which animates it.” United States v. Stuart, 489 

U.S. 353 (368) (1989) (internal quotation marks omitted). To the extent that the provisions of a 

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

Zschernig v. Miller, 389 U.S. 429, 440-41 (1968). 

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9. The United States and Poland entered into the Treaty to promote more effective 

cooperation and assistance between the parties in criminal matters. See Treaty Between the United 

States of America and the Republic of Poland on Mutual Legal Assistance in Criminal Matters, 

Pol.-U.S., pmbl., July 10, 1996, S. TREATY DOC. NO. 105-12. The Treaty obligates each party, 

upon request, to provide assistance to the other in criminal investigations, prosecutions, and related 

proceedings, including assistance in serving documents, obtaining testimony, statements, and 

records, and executing searches and seizures. Treaty, Annex, Article 1. 

10. In addition, the Treaty, like 18 U.S.C. § 3512, authorizes federal courts to use 

compulsory measures to further the execution of such requests. Treaty, Annex, Article 5(1) (“The 

judicial or other competent authorities of the Requested State shall issue subpoenas, search 

warrants, or other orders necessary to execute [a] request”).

18 U.S.C. § 3512

 11. When executing a treaty or non-treaty request for assistance from a foreign 

authority, 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 and 

provides in pertinent part: 

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. 

An application for execution of a request from a foreign authority under this section 

may be filed 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. 

The term “foreign authority” means a foreign judicial authority, a foreign authority 

responsible for the investigation or prosecution of criminal offenses or for 

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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) 

 12. Congress enacted this section to make it “easier for the United States to respond to 

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

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. 2086.1 This 

section provides clear authority for the federal courts, upon application duly authorized by an 

appropriate official of the Department of Justice, to issue orders which are necessary to execute a 

foreign request. 

13. An application is duly authorized by an appropriate official of the Department of 

Justice when the Office of International Affairs, which serves as the “Central Authority” for the 

United States, has reviewed and authorized the request, and executes the request itself or delegate 

execution to another attorney for the government.2

 Upon such a duly authorized application, 

 

1 Prior 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 foreign authorities. 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 previously 

executed); 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 in response 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 Office 

of 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. 81A and 81B. 

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Section 3512 authorizes a federal judge3 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 the taking of testimony or statements and/or the 

production of documents or other things. See 18 U.S.C. § 3512(a)(1)-(b)(1). In addition, a federal 

judge may prescribe any necessary procedures to facilitate the execution of the request, including 

any procedures requested by the foreign authority to facilitate its use of the evidence. See In re 

Letter of Request from the Crown Prosecution Service of the United Kingdom, 870 F.2d 686, 693 

(D.C. Cir. 1989) (court has discretion in prescribing procedures to be followed in executing foreign 

request under 28 U.S.C. § 1782); cf. White v. National Football League, 41 F.3d 402, 409 (8th Cir. 

1994) (court may issue process necessary to facilitate disposition of matter before it); Fed. R. Crim. 

P. 57(b). 

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

or statements and/or the production of documents or other things to: (1) issue an order requiring 

a person to appear and/or produce documents or other things; (2) administer any necessary oaths; 

(3) take testimony or statements; and (4) take receipt of documents or other 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,” typically uses a subpoena entitled 

“Commissioner Subpoena.” Any such subpoena or any other order, subject to subsection (d), may 

be served or executed anywhere in the United States. 18 U.S.C. § 3512(f). A copy of a 

“Commissioner Subpoena” is included as Attachment B. 

 

3 The term “federal judge” includes a magistrate judge. See 18 U.S.C. § 3512(h)(1) and Fed. R. Crim. P. 

1(b)(3)(B) (including a magistrate judge in the definition of federal judge). 

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REQUEST FOR ORDER 

 15. As evidenced by a letter from the Office of International Affairs to the Office of the 

United States Attorney for the Southern district of Florida, the Office of International Affairs has 

reviewed and authorized the Request and has delegated execution to the United States Attorney’s 

Office, Southern District of Florida. Consequently, this application for an Order appointing the 

undersigned as a commissioner to collect evidence from witnesses and to take such other action as 

is necessary to execute the Request has been “duly authorized” within the meaning of Section 

3512. 

 16. In addition, the Request was submitted by an appropriate “foreign authority,” the 

Polish National Prosecutor’s Office, the designated Central Authority in Poland for requests made 

pursuant to the Treaty, and seeks assistance in the investigation of a criminal offense in Poland, 

specifically misappropriation and exceeding authority. Furthermore, the requested Order is 

necessary to execute the Request, and the assistance requested, the production of records and 

witness interview, falls squarely within that contemplated by both the Treaty and Section 3512. 

Finally, the person required to appear is located in the Southern District of Florida. Accordingly, 

this application was properly filed in this district. 

 17. Both Section 3512 and the Treaty authorize the 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 United States 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 

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

other than to the recipients. Accordingly, this Court should authorize a commissioner to collect 

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the evidence requested without notice to any person other than the recipient(s) of the commissioner 

subpoena(s).4

18. Therefore, the United States respectfully requests that this Court issue the attached 

proposed Order, pursuant to 18 U.S.C. § 3512, appointing the undersigned Assistant united States 

attorney, Yara Klukas, (or a substitute or successor subsequently designated by the United States 

Attorney’s Office) as a commissioner and authorizing the undersigned to take the actions 

necessary, including the issuance of a commissioner subpoenas, to obtain the evidence requested 

in a form consistent with the intended use thereof. 

 Dated April 22, 2020.

 Respectfully submitted, 

 ARIANA FAJARDO ORSHAN 

 UNITED STATES ATTORNEY 

 By: /s/ Yara Klukas_________________ 

 YARA KLUKAS 

 Assistant United States Attorney 

 United States Attorney’s Office 

 FL Bar No. 73101 

 99 NE 4th Street, 6th Floor 

 Miami, FL 33132 

 Telephone: (305) 961-9102 

 Email: Yara.Klukas@usdoj.gov

 

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 Polish authorities have not asked U.S. authorities to keep the Request confidential. Accordingly, the 

United States is not seeking authorization to issue a non-disclosure order, nor is it seeking an order to seal 

the court file. 

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