PLATT & BUESCHER 

RESPONSE TO STATUS REPORT REGARDING MLAT Attorneys at Law 

AND REQUEST FOR CONTINUANCE/ROSENAU-1 P.O. Box 727

No. CR06-157MJP Coupeville, WA 98239

Phone: (360) 678-6777

 Fax: (360) 678-0323

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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.

No. CR06-157MJP

DEFENDANT’S RESPONSE TO 

STATUS REPORT REGARDING 

PROCESS OF GOVERNMENT’S 

MLAT REQUEST TO CANADA 

AND REQUEST FOR 

CONTINUANCE OF TRIAL DATE

COMES NOW, HENRY ROSENAU, by and through his counsel of record, Craig A.

Platt, and hereby respectfully submits this Response To Government’s Status Report Regarding 

Process of Government’s MLAT Request To Canada and Request for Continuance of Trial Date.

I. OBJECTION TO CONTINUANCE

The Defense respectfully objects to any continuance of the currently scheduled trial date 

of March 19, 2012. The currently scheduled trial date was set in order to accommodate the 

Government’s MLAT request. Further continuance will only serve to further prejudice the 

incarcerated Defendant.

Case 2:06-cr-00157-MJP Document 75 Filed 02/16/12 Page 1 of 5
 PLATT & BUESCHER 

RESPONSE TO STATUS REPORT REGARDING MLAT Attorneys at Law 

AND REQUEST FOR CONTINUANCE/ROSENAU-2 P.O. Box 727

No. CR06-157MJP Coupeville, WA 98239

Phone: (360) 678-6777

 Fax: (360) 678-0323

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II. OBJECTION TO PRODUCTION OF EVIDENCE IN VIOLATION OF PROCEDURES 

REQUIRED UNDER THE LAW OF THE REQUESTED STATE

The Government has indicated that, in order to proceed to trial, it is pursuing the 

production of evidence in the form of witness testimony and physical evidence currently located 

in British Columbia, Canada. The Government is attempting to produce such evidence pursuant 

to the Treaty Between the Government of Canada and the Government of the United States of 

America on Mutual Legal Assistance in Criminal Matters (MLAT) Treaty Doc. 100-14; 100th 

Cong., 2nd Sess. Exec. Rept. 100-28; 100th Cong, 2nd Sess. Exec. Rept 101-10; 101st Cong., 1st 

Sess. XXIV ILM No. 4, 7/85, 1092-1099.

Pursuant to proper MLAT procedures, as outlined in Article V of the MLAT, the 

Requested State may deny assistance to the extent that the request is not made in conformity with 

the provisions of the treaty or execution of the request is contrary to its public interest. 

Additionally, in British Columbia, MLAT procedures are addressed in the Mutual Legal 

Assistance in Criminal Matters Act, R.S.C. 1985, c. 30 (the “Act”). Section 15 of the Act reads, 

as follows:

15. (1) At the hearing to consider the execution of a warrant issued under section 

12, after having considered any representations of the Minister, the competent 

authority, the person from whom a record or thing was seized in execution of the 

warrant and any person who claims to have an interest in the record or thing so 

seized, the judge who issued the warrant or another judge of the same court may

(a) where the judge is not satisfied that the warrant was executed according to its 

terms and conditions or where the judge is satisfied that an order should not be 

made under paragraph (b), order that a record or thing seized in execution of the 

warrant be returned to

(i) the person from whom it was seized, if possession of it by that person is 

lawful, or

(ii) the lawful owner or the person who is lawfully entitled to its possession, if the 

owner or that person is known and possession of the record or thing by the person 

from whom it was seized is unlawful;

Mutual Legal Assistance in Criminal Matters Act, Sec. 15, R.S.C. 1985, c. 30.

On July 5, 2002, the Supreme Court of British Columbia denied a request for assistance 

for records under the U.S. - Canadian Mutual Assistance in Criminal Matters Treaty due to a 

finding of abuse of process in connection with efforts to obtain records relevant to alleged tax 

Case 2:06-cr-00157-MJP Document 75 Filed 02/16/12 Page 2 of 5
 PLATT & BUESCHER 

RESPONSE TO STATUS REPORT REGARDING MLAT Attorneys at Law 

AND REQUEST FOR CONTINUANCE/ROSENAU-3 P.O. Box 727

No. CR06-157MJP Coupeville, WA 98239

Phone: (360) 678-6777

 Fax: (360) 678-0323

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offenses. United States v. Schneider, 2002 BCSC 1014, 2002 Carswell BC 1601, Docket: 

Vancouver BL0221. 

The U.S. made the request pursuant to Section 15 of the Mutual Legal Assistance in 

Criminal Matters Act, R.S.C. 1985, c. 30 to obtain records and things seized by Royal Canadian 

Mounted Police, which were filed with the court, pursuant to Section 14 of the Act. The U.S. 

made the application, stating that it was investigating allegations that Mr. Schneider had 

committed fraud in violation of 18 U.S.C. Refusing to approve the “sending order”, the court 

stated:

The mutual legal assistance process in Canada is governed by the Act, which 

codifies into domestic law Canada’s international obligations under its various 

treaties. In R. v. Budd (2000), 150 C.C.C. (3d) 108 (Ont. C.A.), the Ontario Court 

of Appeal considered the test for reviewing the sufficiency of a search warrant 

under the Act (which it held was the R. v. Garofoli [1990 CarswellOnt 119 

(S.C.C.)] test) and the principles which govern at the s. 15 sending hearing. 

Rosenberg J.A., writing for the court, at pp. 121-122, said as follows:

Thus, when the judge decides whether or not to send the seized materials to the 

requesting states at the hearing under s. 15 of the Act, the judge may consider the 

conduct of the Canadian authorities in obtaining the material used to support the 

information. It will be for the judge at the s. 15 hearing to decide whether an order 

should be made sending the material to the requesting states in view of the 

conduct of the Canadian authorities and the alleged Charter violations.

Id. at Para. 18.

Ultimately the court concluded that the sending order should not issue:

In my opinion, if the legislative scheme created by the Act is frustrated by the 

conduct of the foreign state then the court cannot properly apply the provisions of 

the Act, and the foreign state should not have the benefit of the scheme.

56 I agree with respondent’s counsel that in protecting the integrity of the 

legislative scheme the court should demonstrate its willingness to enforce and 

give effect to the protective mechanisms reflected in the statute, both for the 

protection of the Charter rights of its citizens, and to maintain respect for the 

court’s own process. It follows then that such a demonstration can only be made 

implicitly by refusing to allow the legislative scheme to be abused by a party 

taking the benefit of those aspects that work to its advantage and circumventing 

others.

57 For these reasons, I am satisfied that a sending order should not be made....

Case 2:06-cr-00157-MJP Document 75 Filed 02/16/12 Page 3 of 5
 PLATT & BUESCHER 

RESPONSE TO STATUS REPORT REGARDING MLAT Attorneys at Law 

AND REQUEST FOR CONTINUANCE/ROSENAU-4 P.O. Box 727

No. CR06-157MJP Coupeville, WA 98239

Phone: (360) 678-6777

 Fax: (360) 678-0323

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Id. at Para. 55-57.

In the present case, it appears that no “Sending Order Hearing” has been conducted by 

the courts in British Columbia. Further, Mr. Rosenau, as “the person from whom a record or 

thing was seized” has not been afforded an opportunity to be heard by the court in British 

Columbia, in violation of the provisions of the Mutual Legal Assistance in Criminal Matters Act, 

R.S.C. 1985, c. 30, which governs the application of MLAT provisions in the requested state.

The defense objects to the production of any evidence obtained from Canada, both in the 

form of witness testimony and physical evidence, in violation of the procedures required under 

the law of the requested state.

DATED this 16th day of February, 2012.

Respectfully submitted, 

PLATT & BUESCHER

s/Craig Platt_______________

Craig Platt

Attorney for Defendant

WSBA #12396

P.O. Box 727

Coupeville, Washington 98239-0727

Telephone: (360) 678-6777

Fax: (360) 678-0323

Email: craig@plattbuescher.com

Case 2:06-cr-00157-MJP Document 75 Filed 02/16/12 Page 4 of 5
 PLATT & BUESCHER 

RESPONSE TO STATUS REPORT REGARDING MLAT Attorneys at Law 

AND REQUEST FOR CONTINUANCE/ROSENAU-5 P.O. Box 727

No. CR06-157MJP Coupeville, WA 98239

Phone: (360) 678-6777

 Fax: (360) 678-0323

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CERTIFICATE OF SERVICE

I hereby certify that on 2/16/2012, I electronically filed the foregoing with the Clerk of 

the Court using the CM/ECF system which will send notification of such filing to the attorney(s) 

of record for the plaintiff. 

s/Craig Platt_______________

Craig Platt

Attorney for Defendant

WSBA #12396

P.O. Box 727

Coupeville, Washington 98239-0727

Telephone: (360) 678-6777

Fax: (360) 678-0323

Email: craig@plattbuescher.com

Case 2:06-cr-00157-MJP Document 75 Filed 02/16/12 Page 5 of 5