1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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

GOVERNMENT’S REPLY TO

DEFENSE RESPONSE TO STATUS

REPORT

COMES NOW the United States of America, by and through Jenny A. Durkan,

United States Attorney for the Western District of Washington, and Marc A. Perez and Susan

M. Roe, Assistant United States Attorneys for said District, and files this Reply to the

Defendant’s Response to the Status Report of the Mutual Legal Assistance Treaty request in

the above entitled case. The defendant opposes the requested trial continuance necessary for

the MLAT processing on the basis that the Canadian Court has not yet issued a Sending

Order and, further, because the defendant “has not been afforded an opportunity to be heard

by the court in British Columbia.” Response, page 4. The defendant notes his objection to

the production of Canadian evidence, in witness or other form. The Court asked for this

Government Reply, which is intended to more fully explain the process.

The Office of International Affairs, Department of Justice, was consulted and has

advised the undersigned of the following. OIA has been informed by the International

Assistance Group, of Justice Canada, that this MLAT request has been approved by Justice

REPLY TO DEFENSE RESPONSE TO

STATUS REPORT/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 77 Filed 02/22/12 Page 1 of 4
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Canada. That means, that United States’ request for the assistance meets Justice Canada’s

criteria and law pursuant to the Treaty. Having met the Canadian legal threshold, Justice

Canada has sent out communications to the various agencies for their evidence, which

includes official records and testimony. In the case at bar, Justice Canada currently is

gathering the material requested pursuant to the MLAT and acting on the requested civilian

depositions.

The agencies contacted by Justice Canada will submit the records and testimony.

Once all requested evidence is assembled, a Canadian court will review the submissions in a

“Sending Hearing.” Typically, that results in the Court issuing a Sending Order which

decrees the requested evidence be turned over to the petitioning country. Justice Canada,

pursuant to the Sending Order, releases the evidence to the U.S. Department of Justice.

The Court may, however, review certain aspects of the evidence and determine not to

release it to the petitioning foreign country. This, apparently is what occurred in the

Canadian case, United States v. Schneider, 2002 BCSC 1014, cited by the defendant.

OIA noted that how the Sending Hearing is conducted, whether a defendant appears,

what is presented, and what will be sent is governed solely by Canadian authorities and that

the United States has no role, whatsoever, in the matter.

Additionally, the Treaty is between countries and is designed for governments to

determine how and what governments will share internationally. The Treaty does not give

other entities standing in an MLAT request. “This Treaty is intended solely for mutual legal

assistance between the Parties. The provisions of this Treaty shall not give rise to a right on

the part of a private party to obtain, suppress or exclude any evidence or to impede the

execution of a request.” Exhibit 1, MLAT Treaty, Article II, 4. “The article specifically

states that it is not intended to create rights in private parties either to gather evidence or

secure other assistance or to suppress or exclude in civil or criminal proceedings evidence

obtained under the Treaty.” Exhibit 2, Letter of Submittal, page 2, lines 6 - 10. It appears

that, according to the terms of the Treaty, the defendant has no right “ to be heard” at

Sending Hearing. Whether or not a Canadian court allows him to be heard is within the

REPLY TO DEFENSE RESPONSE TO

STATUS REPORT/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 77 Filed 02/22/12 Page 2 of 4
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Canadian court’s power but the denial of such is not a basis for exclusion, in a United States

trial, of the evidence obtained pursuant to the MLAT.

Therefore, the government agrees that no Sending Order has been issued yet. It is the

final step which is anticipated. OIA has been assured that Justice Canada is moving forward

on this request, knowing the trial is pending.

Once a Sending Order is issued, presuming it allows the requested evidence including

depositions, the government will move promptly to arrange receipt of the evidence, to request

this Court’s Order allowing the Canadian depositions, and to take the necessary steps for the

depositions (including obtaining country clearance). It is hoped that this can still be

accomplished by late March. Therefore, the government renews its request that the trial be

rescheduled for up to 30 days, in order to allow the Canadian legal process to proceed.

DATED this 22nd day of February, 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

 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

REPLY TO DEFENSE RESPONSE TO

STATUS REPORT/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 77 Filed 02/22/12 Page 3 of 4
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

CERTIFICATE OF SERVICE

I hereby certify that on February 22, 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/Ryan Hebert

Ryan Hebert

Legal Assistant

United States Attorney’s Office

700 Stewart Street, Suite 5220

Seattle, Washington 98101

Phone: (206)553-4215

FAX: (206)553-0755

E-mail: Ryan.Hebert@usdoj.gov

REPLY TO DEFENSE RESPONSE TO

STATUS REPORT/ROSENAU- 4

CR06-157MJP

UNITED STATES ATTORNEY

700 Stewart Street, Suite 5220

Seattle, Washington 98101-1271

(206) 553-7970

Case 2:06-cr-00157-MJP Document 77 Filed 02/22/12 Page 4 of 4