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Chief Judge Marsha J. Pechman

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

UNITED STATES OF AMERICA,

Plaintiff,

v.

HENRY ROSENAU,

Defendant.

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NO. CR06-157MJP

GOVERNMENT’S OPPOSITION

TO DEFENDANT’S MOTION TO

COMPEL MLAT MATERIALS

AND SEALED COURT

DOCUMENTS

Noted: April 20, 20102

The United States of America, by and through Jenny A. Durkan, United States

Attorney for the Western District of Washington, and Susan M. Roe and Marc A. Perez,

Assistant United States Attorneys for said District, and files this opposition to the defendant’s

Motion to Compel which asks for (1) materials of the United State Government to Canadian

Government request, made pursuant to the Mutual Legal Assistance Treaty between the two

sovereigns, in an international facilitation of prosecuting criminals and (2) sealed court and

grand jury documents. Dkt # 102.

GOVERNMENT’S OPPOSITION TO DEFENSE

MOTION TO COMPEL/ ROSENAU- 1

CR06-157MJP

UNITED STATES ATTORNEY

700 Stewart Street, Suite 5220

Seattle, Washington 98101-1271

(206) 553-7970

Case 2:06-cr-00157-MJP Document 116 Filed 04/19/12 Page 1 of 4
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The defendant has a right to certain discoverable materials. Federal Rule of Criminal

Procedure 16 and Local Rule 16 list the required production, of which a relevant section is

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(A)(1) (E) Documents and Objects. Upon a defendant's request, the

government must permit the defendant to inspect and to copy or photograph

books, papers, documents, data, photographs, tangible objects, buildings or places, or copies

of portions of nay of these items, if the items is within the government’s possession, custody,

or control and

(i) the item is material to preparing the defense;

(ii) the government intends to use the item in its case-in-chief at trial ; or

(iii) the item was obtained from or belongs to the defendant.

Another relevant section is Rule 16 (a)(2). Information Not Subject to Disclosure. Except

as Rule 16(a)(1) provides otherwise, this rule does not authorize the discovery or inspection

of reports, memoranda, or other internal government documents made by an attorney for the

government or other government agent in connection with investigating or prosecuting the

case.

The defense appears to be requesting internal government documents which relate to

the preparation, writing, revising, consulting on and presenting of the United States’ official

MLAT request to Canada. These are all internal government documents which are not

discoverable under Rule 16 or are properly provided by the prosecution in a criminal case.

Whether a Canadian is entitled to receive MLAT documents from his government is a

matter to be decided in Canada. The United States has no basis to involve itself in a

Canadian citizen’s request of his government and has inadequate knowledge of the Canadian

laws on that matter.

There is no claim that the requested materials would be discoverable pursuant as Jencks,

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Brady or Giglio matters.

GOVERNMENT’S OPPOSITION TO DEFENSE

MOTION TO COMPEL/ ROSENAU- 2

CR06-157MJP

UNITED STATES ATTORNEY

700 Stewart Street, Suite 5220

Seattle, Washington 98101-1271

(206) 553-7970

Case 2:06-cr-00157-MJP Document 116 Filed 04/19/12 Page 2 of 4
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Generally, however, according to the Office of International Affairs, Department of

Justice, the governments view MLAT requests as confidential and protected sovereign

speech and not open to individual claims or causes of action.

Therefore, the internal DOJ memoranda reports, drafts, and other internal documents

relating to the United States’ request under the MLAT are not discoverable in a criminal

case. Any claim in the Canadian court is better handled within Canada.

The defendant also requests that the sealed documents relating to Zachary Miraback

be released to him and, alternatively, be preserved for appeal. The government objects to the

release of the documents as a violation of Mr. Miraback’s privacy and further notes that this

Court has reviewed the documents in camera and found no Brady or Giglio materials

contained within. The defendant has not established any basis for unsealing court documents

of something other than a witness in this case. Therefore, the documents should remain

sealed.

DATED this 19th day of April, 2012.

Respectfully submitted,

JENNY A. DURKAN

United States Attorney

s/Susan M. Roe

SUSAN M. ROE

Assistant United States Attorney

United States Attorney’s Office

700 Stewart Street, Suite 5220

Seattle, WA 98101-1271

Telephone: (206) 553-1077

Fax: (206) 553-0755

E-mail: susan.roe@usdoj.gov

GOVERNMENT’S OPPOSITION TO DEFENSE

MOTION TO COMPEL/ ROSENAU- 3

CR06-157MJP

UNITED STATES ATTORNEY

700 Stewart Street, Suite 5220

Seattle, Washington 98101-1271

(206) 553-7970

Case 2:06-cr-00157-MJP Document 116 Filed 04/19/12 Page 3 of 4
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s/Marc A. Perez

Marc A. Perez

United States Attorney's Office

1201 Pacific Avenue

Suite 700

Tacoma, Washington 98402

Telephone: (253) 428-3822

Fax: (253) 428-3826

Email: Marc.Perez@usdoj.gov

CERTIFICATE OF SERVICE

I hereby certify that on Aril 19, 2012, I electronically filed the foregoing with the

Clerk of Court using the CM/ECF system which will send notification of such filing to the

attorney(s) of record for the defendant(s). I hereby certify that I have served the attorney(s)

of record for the defendant(s) that are non CM/ECF participants via telefax.

s/SUSAN M. ROE

SUSAN M. ROE

United States Attorney’s Office

700 Stewart Street, Suite 5220

Seattle, Washington 98101

Phone:206-553-1077

FAX: 206-553-0755

E-mail: susan.roe@usdoj.gov

CERTIFICATE OF SERVICE UNITED STATES ATTORNEY

700 Stewart Street, Suite 5220

Seattle, Washington 98101-1271

(206) 553-7970

Case 2:06-cr-00157-MJP Document 116 Filed 04/19/12 Page 4 of 4