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JOHN S. LEONARDO

United States Attorney

District of Arizona

M. BRIDGET MINDER

Arizona State Bar No. 023356

Assistant U.S. Attorney

Two Renaissance Square

40 North Central Avenue, Suite 1200

Phoenix, Arizona 85004-4408

Telephone: (602) 514-7500

mary.minder@usdoj.gov

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

IN RE: 

Request from the United Kingdom 

Pursuant to the Instrument Between the 

Government of the United States of 

America and the United Kingdom 

Implementing the Agreement on Mutual 

Assistance Between the United States and 

the European Union in Criminal Matters in 

the Matter of Simon Higginson.

No.

APPLICATION FOR ORDER 

PURSUANT TO 18 U.S.C. § 3512

The United States petitions the Court for an order appointing AUSA M. Bridget 

Minder as a commissioner to collect evidence from witnesses and take other actions

necessary to execute the attached request for assistance from the United Kingdom (the 

“Request”). This petition is based on 18 U.S.C. § 3512, Article I of the Treaty between 

the United States of America and the United Kingdom of Great Britain and Northern 

Ireland concerning Mutual Assistance in Criminal Matters (as implemented by the 

Instrument as contemplated by Article 3(2) of the Agreement on Mutual Legal Assistance 

between the United States and the European Union signed June 25, 2003) (the “Treaty”),

and the Court’s own inherent authority. 

As set forth in the Request, the United Kingdom seeks evidence regarding a bank 

account, domain name, and email accounts used to defraud a U.K.-based insurance 

company. If appointed, undersigned counsel intends to issue subpoenas, conduct 

interviews, obtain warrants, and take other actions as necessary to execute the Request.

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Memorandum of Points and Authorities

A. Request from the United Kingdom

The Central Authority for United Kingdom makes this Request in connection with 

an ongoing criminal investigation. The Crown Prosecution Service, Specialized Fraud 

Division, and the City of London Police are investigating Simon Higginson and others for 

conspiracy to defraud, fraud by abuse of position, and money laundering. Higginson 

worked as an insurance broker for the Willis Group Ltd. (“Willis Group”), an 

international insurance company headquartered in London. The investigation revealed 

that Higginson, while working at Willis Group, created Enargee Consulting Ltd. 

(“Enargee”) and Brokermarine, which purported to be insurance consultants providing 

services to Willis Group. Through Enargee and Brokermarine, Higginson and his 

associate, Lee Willis, caused Willis Group to deposit funds totaling $2,300,000 into 

accounts that Higginson and Willis controlled. In furtherance of the alleged offenses, 

Higginson and Willis opened a bank account for Enargee, created and utilized a domain 

name for Enargee, and created and utilized email accounts related to Enargee and 

Brokermarine, which are the subject of the Request.

1. Enargee Consulting Ltd. 

Between December 2005 and December 2010, Willis Group paid Enargee 

approximately $1,000,000 for “introduction services.” Higginson represented to Willis 

Group that Enargee was run by a man named Nigel Gladwell. But Higginson and Willis, 

not Gladwell, appear to have controlled Enargee. When law enforcement interviewed 

Gladwell, he denied any knowledge or involvement in Enargee and claimed to be a 

victim of identity theft. Northern Trust Bank records for Enargee confirm that Gladwell 

did not control the account or receive payments. Instead, the sole signatory was Willis. 

Money paid into Enargee’s account was paid to, among others, Willis ($601,130.71), 

Higginson ($165,000), and Higginson’s wife, Lydia ($73,415.99). 

In a January 17, 2014, signed statement, Higginson stated:

• Higginson set up Enargee with Willis as the sole shareholder and owner. 

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• Higginson set up Enargee’s bank account with the Northern Trust Bank in 

Miami, Florida, with Willis as the sole signatory. 

• Gladwell had no involvement with Enargee and received no money from it.

• Emails purporting to be from Gladwell related to Enargee were actually 

from Higginson. 

• Higginson created the website “www.enargeeconsulting.com” using

Gladwell’s name as the registrant. (The domain name 

“www.enargeeconsulting.com” is owned by GoDaddy.com and is 

associated with the email address “mail@enargeeconsulting.com.”) 

• Higginson also was responsible for creating the e-mail address 

“nigel.gladwell@hotmail.co.uk,” which was used as a contact for Enargee,

without Gladwell’s knowledge or permission.

2. Brokermarine 

Brokermarine was an Ecuadorian company set up by an Ecuadorian national, Juan 

Carlos Gonzalez Mena, a lawyer and insurance expert. Higginson and Willis, however, 

appear to have controlled Brokermarine’s bank account; during a search of Higginson 

and Willis’s shared residence, law enforcement seized bank statements in the name of 

Brokermarine. From 2003 until 2012, Willis Group paid approximately $1,300,000 in 

purported commission payments to Brokermarine’s bank account, which then were 

shared by Gonzalez Mena, Higginson, and Willis. Gonzalez Mena received 

approximately $91,000, Higginson $57,000; and Willis $20,000 directly from 

Brokermarine’s bank account. Funds also were transferred from Brokermarine’s account 

to another bank account and, from there, Gonzalez Mena received approximately 

£63,000; Higginson £137,000; and Willis £150,974. 

The email address “brokermarine@hotmail.com” was used to conduct 

communications between Willis Group and Brokermarine. A subscriber check on the 

email “brokermarine@hotmail.com” account shows it was registered on April 21, 2012 to 

the post code KT21 2HF, the same post code of Higginson’s mother’s home address. 

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The last log in IP address, 80.229.0.122, is the same IP address used to register and login 

to the “nigelgladwell@hotmail.co.uk” e-mail address, which Higginson admitted he was 

responsible for creating. 

3. Evidence Sought

In furtherance of their investigation, United Kingdom authorities seek the 

following evidence:

1. From GoDaddy.com in Scottsdale, Arizona: IP details, full account holder 

and payment details, and all records and correspondence relating to the email account 

“mail@enargeeconsulting.com” and the domain name “enargeeconsulting.com.” 

2. From Microsoft in Redmond, Washington: account information, customer 

notes, IP history, and contents of the e-mail account for the accounts 

“nigelgladwell@hotmail.co.uk” and “brokermarine@hotmail.com.” 

3. From Northern Trust Bank in Miami, Florida: bank account records for 

Northern Trust Bank account number 1710169010, in the name of Enargee Consulting 

Ltd, including monthly statements, account opening documentation, customer notes, all 

debit and credit slips, and details of any linked accounts.

Federal courts, pursuant to the Treaty, statute, and their inherent authority, may 

issue orders as may be necessary for the production of the evidence requested by the 

United Kingdom including orders appointing a person as a commissioner to gather such 

evidence and establishing the procedures for the production of such evidence.

B. Authority to Execute the Request

1. The Treaty

A treaty constitutes the law of the land. U.S. Const. Art. VI. The provisions of a 

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

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

In re Comm’rs Subpoenas, 325 F.3d 1287, 1291 (11th Cir. 2003), abrogation in other 

part recognized by In re Clerici, 481 F.3d 1324, 1333 n. 12 (11th Cir. 2007). To the 

extent that the provisions of a treaty are inconsistent with a preexisting statutory 

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provision, the treaty supersedes the statute. Zschernig, et al. v. Miller, Adm’r, et al., 389 

U.S. 429, 440 441 (1968); In re Comm’rs Subpoenas, 325 F.3d 1287, 1305 1306 (11th 

Cir. 2003); United States v. Erato, 2 F.3d 11, 15-16 (2d Cir. 1993).

In accordance with the provisions of the Treaty, each state is obliged to provide 

assistance to the other for the purpose of proceedings as defined in Article 19 of the 

Treaty. Article 19 defines “proceedings” as “proceedings related to criminal matters and 

includes any measure or step taken in connection with the investigation or prosecution of 

criminal offenses ....” Each state contemplated that it would provide the other with 

assistance generally comparable to that which is available to its own law enforcement 

authorities, which assistance includes taking testimony or statements of persons, 

providing documents and other evidence, and immobilizing criminally obtained assets. 

Treaty, Article I (2); Barr v. United States Dep’t of Justice, 645 F. Supp. 235, 237 

(E.D.N.Y. 1986), aff’d, 819 F.2d 25 (2d Cir. 1987). 

The Treaty and 18 U.S.C. § 3512 empower federal courts to execute treaty 

requests to comply with the United States’ treaty obligations. Article 5 of the Treaty 

provides that: “The courts of the Requested Party shall have authority to issue subpoenas, 

search warrants, or other orders necessary to execute the request.” The Treaty 

contemplates that federal courts will use compulsory measures to execute such requests. 

Article 8 (1) of the Treaty provides that: “A person in the territory of the Requested Party 

from whom evidence is requested pursuant to this Treaty may be compelled, if necessary, 

to appear in order to testify or produce documents, records, or articles of evidence by 

subpoena or such other method as may be permitted under the law of the Requested 

Party.”

The Treaty imposes no dual criminality requirement as a precondition for 

providing assistance. Consequently, each state party is obligated to provide assistance 

without regard to whether the conduct under investigation or prosecution would 

constitute an offense under the laws of the Requested State, except as otherwise provided 

by U.S. law. See Letter of Submittal to the President of the United States from Secretary 

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of State, dated January 6, 1995; 1994 U.S.T. LEXIS 203.

2. Statutory Authority Grounding Execution of Requests for Assistance

The Treaty is designed to be self-executing and requires no implementing 

legislation. See Letter of Submittal to the President of the United States from Secretary 

of State, dated January 6, 1995; 1994 U.S.T. LEXIS 203; In re Comm’rs Subpoenas, 325 

F.3d at 1291. But because the procedural provisions in many treaties are minimal, in the 

past federal courts routinely utilized procedures authorized by 28 U.S.C. § 1782 (the 

“commissioner” process) to execute treaty requests from foreign authorities. In re 

Comm’rs Subpoenas, 325 F.3d at 1305-1306. Substantive U.S. law regarding searches, 

seizures, and other compulsory processes further grounded the execution of such 

assistance requests.

On October 19, 2009, the President signed the Foreign Evidence Request 

Efficiency Act of 2009 (Public Law 111 79), enacting 18 U.S.C. § 3512, the full text of 

which is attached as Exhibit A for the convenience of this Court. Section 3512 explicitly 

authorizes a federal court to: 

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.

Section 3512 directly empowers the federal courts to execute such requests and 

separately codifies under Title 18 the longstanding practice and procedures employed by 

the United States and the federal courts to execute requests by foreign authorities for 

assistance to the fullest extent possible under U.S. law. Congress enacted Section 3512 

to make it “easier for the United States to respond to these requests by allowing them to 

be centralized and by putting the process for handling them within a clear statutory 

system.” 155 CONG. REC. S6,810 (2009) (Statement of Sen. Whitehouse). 

C. Execution of Foreign Requests Under the Treaty and Section 3512

1. Authorization of the Application to This Court

Section 3512 provides:

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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 and prosecution of 

criminal offenses, or in proceedings related to the prosecution of criminal 

offenses, including proceedings regarding forfeiture, sentencing and 

restitution. 

For purposes of Section 3512, an application is “duly authorized by an appropriate 

official of the Department of Justice” when the Department of Justice, Criminal Division, 

Office of International Affairs, has reviewed and authorized the request and is executing 

the request itself or has delegated the execution to another attorney for the government. 

In this matter, such authorization and delegation is evidenced by a letter, Attached as 

Exhibit B, dated October 19, 2015 from the Department of Justice, Criminal Division, 

Office of International Affairs, received by the United States Attorney, transmitting the 

Request to this district for execution.

Section 3512(c) authorizes filing the instant application in this district, where 

some of the evidence is located.

2. Foreign Authority Within Section 3512 and the Treaty

As to the “foreign authority” making the Request, Section 3512(h) provides: 

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

authority responsible for the investigation or prosecution of criminal 

offenses or for 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.

In this matter the Secretary of State for the Home Department is the designated Central 

Authority in the United Kingdom for requests made pursuant to the Treaty. 

As evidenced by the Request itself and confirmed in the authorization process and 

again by the undersigned, consistent with Section 3512(a)(1), the foreign authority seeks 

assistance in the investigation or prosecution of criminal offenses or in proceedings 

related to the prosecution of criminal offenses.

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3. Authority of the Federal Courts Under Section 3512

When enacting Section 3512, Congress intended that federal courts facilitate to the 

fullest extent possible the execution of requests by foreign authorities for assistance in 

criminal matters and endeavored to streamline and expedite the execution of such 

requests. Section 3512 authorizes federal courts to issue “such orders as may be 

necessary to execute a request” and specifically includes: orders for search warrants 

pursuant to Federal Rule of Criminal Procedure 41; orders for stored wire or electronic 

communications and related evidence under 18 U.S.C. § 2703; orders for pen registers 

and trap and trace devices under 18 U.S.C. § 3123; orders for the provision of testimony 

or a statement or the production of documents or other things, or both; and orders 

appointing “a person” to direct the taking of testimony or statements or the production of 

documents or other things, or both. 18 U.S.C. § 3512(a)(1)-(2).

The assistance requested by the United Kingdom pursuant to the Treaty by its 

Secretary of State of the Home Department in the instant Request falls squarely within 

that contemplated by both the Treaty and Section 3512.

D. Appointment of a Person as Commissioner to Collect Evidence

1. Statutory Authorization

Section 3512(b) provides that a federal judge may “issue an order appointing a 

person to direct the taking of testimony or statements or of the production of documents 

or other things, or both.” The statute further authorizes the person appointed to: issue 

orders requiring the appearance of a person, or the production of documents or other 

things, or both; administer any necessary oath; and take testimony or statements and 

receive documents or other things. Commensurate with past practice under 28 U.S.C. 

§ 1782, it is anticipated that a federal court would appoint an attorney for the 

government, typically a federal prosecutor, as “commissioner.”

2. Procedures for Evidence Collection

Section 3512(a) specifically empowers a federal judge to issue such orders as may 

be “necessary” to execute the request. This authorization encompasses orders specifying 

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the procedures to be used to collect particular evidence, including procedures requested 

by the foreign authority to facilitate its later use of the evidence. In executing a request 

made pursuant to a treaty, a court has the obligation to prescribe effective and expeditious 

procedures designed to promote the purpose of the treaty. See In re Comm’rs Subpoenas, 

325 F.3d at 1305. Nothing in Section 3512 suggests any limitation on a court’s power to 

exercise complete discretion in prescribing the procedure to be followed as was available 

under 28 U.S.C. § 1782. In re Letter of Request from the Crown Prosecution Serv. of the 

United Kingdom, 870 F.2d 686, 693 (D.C. Cir. 1989), citing 1964 U.S.C.C.A.N. at 3789. 

See White v. Nat’l Football League, et al., 41 F.3d 402, 409 (8th Cir. 1994), cert. denied, 

515 U.S. 1137 (1995) (a court may issue whatever process it deems necessary to facilitate 

disposition of a matter before it); Fed. R. Crim. P. 57(b).

a. Procedures Authorized by Other Statutes

In addition, Section 3512 references specific U.S. laws for obtaining certain 

evidence and, by doing so, adopts any statutorily mandated procedures in relation to 

obtaining orders for search warrants; orders for contents of stored wire or electronic 

communications or for records related thereto; and orders for a pen register or a trap and 

trace device.

b. Order by the Person Appointed; Commissioner Subpoenas

Section 3512 authorizes the “person” appointed (here, and in past practice under 

28 U.S.C. § 1782, the “commissioner”) to issue orders “requiring the appearance of a 

person, or the production of documents or other things or both.” Further, Article 5 of the 

Treaty provides for the issuance of procedural documents, such as subpoenas, to gather 

evidence: “The courts of the Requested Party shall have authority to issue subpoenas, 

search warrants, or other orders necessary to execute the request.” 

If a federal district court so orders, the commissioner may use a commissioner’s 

subpoena to obtain the requested evidence. See In re: Comm’rs Subpoenas, 325 F.3d at 

1291 (incorporating in pertinent part a district court’s order directing use of 

commissioner’s subpoenas); United States v. Erato, 2 F.3d 11, 13-14 (2d Cir. 1993) 

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(same). This commissioner’s subpoena is simply a version of the “order” to be issued by 

the person appointed by the court under Section 3512 to direct the production of 

evidence. Section 3512 expressly authorizes the service and enforcement of such orders, 

or commissioner’s subpoenas, anywhere in the United States (i.e., coextensive with the 

service of subpoenas in U.S. criminal investigations and prosecutions).

c. Notice of Evidence Taking

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

domestic criminal matters and its prior practice on behalf of foreign authorities under 

28 U.S.C. § 1782. In re Letter of Request from the Crown Prosecution Serv. of the 

United Kingdom, 870 F.2d at 688; In re Letters Rogatory from the Tokyo District, Tokyo, 

Japan, 539 F.2d 1216, 1219 (9th Cir. 1976). The Treaty itself contemplates the need for 

confidentiality with respect to all aspects of the execution of requests. Article 7 (1) of the 

Treaty provides that: “The Requested Party shall, upon request, keep confidential any 

information which might indicate that a request has been made or responded to.”

Both Section 3512 and the Treaty at Article 8 authorize 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 U.S. criminal proceedings 

(i.e., grand jury and criminal trial subpoenas) are issued without notice to any party other 

than the recipients (i.e., no notice to targets or defendants), orders and commissioner’s 

subpoenas issued in execution of treaty requests pursuant to Section 3512 and the 

applicable treaty likewise should require no notice other than to the recipients. In the 

absence of a specific request to provide notice, a district court and U.S. authorities can 

assume that a requesting foreign authority has provided such notice as the foreign law 

requires, or that foreign law does not require notice and the requesting foreign authority 

does not consider notice to be necessary or useful. Accordingly, a federal district court 

should authorize a commissioner to collect the evidence requested without notice to any 

party other than the recipient of the commissioner’s subpoena except to the extent that a 

request asks for specific notice procedures. 

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d. Right to Financial Privacy Act

The Right to Financial Privacy Act, 12 U.S.C. §§ 3401 et seq., does not apply to 

execution of foreign legal assistance requests. Young v. United States Dep’t of Justice, 

882 F.2d 633, 639 (2d Cir. 1989), cert. denied, 493 U.S. 1072 (1990); 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); In re Letters of Request from the Supreme 

Court of Hong Kong, 821 F.Supp. 204, 211 (S.D.N.Y. 1993). Consequently, to the extent 

that execution of a request entails production of bank or financial records, notice 

provisions of the Act do not apply, and the commissioner need not give, nor arrange for 

the custodian of records to give, notice to an account holder. (Note that the Act itself 

applies only to accounts maintained in a person’s name and not to corporate, perhaps 

even partnership, accounts. United States v. Daccarett, 6 F.3d 37, 50-52 (2d Cir. 1993).)

Conclusion

The instant Request is exactly the type of request contemplated for execution 

under Section 3512. In its sequential legislative efforts relevant to the provision of 

assistance to foreign authorities, Congress intended that the United States set an example 

to other nations by making judicial assistance generously available. See, e.g., In re 

Request for Assistance from Ministry of Legal Affairs of Trinidad and Tobago, 848 F.2d 

1151, 1153-1154 (11th Cir. 1988), cert. denied, 488 U.S. 1005 (1989). Section 3512 

enables the United States to respond “more quickly ... to foreign evidence requests. 

These efforts will assist the United States with its investigations as foreign authorities 

will be urged to respond in kind to our evidence requests in a speedy manner.” 155 

CONG. REC. H10,093 (2009) (Statement of Rep. Schiff). 

Accordingly, to execute this Request, the government moves this Court to issue 

the attached order pursuant to the Treaty and 18 U.S.C. § 3512 appointing the

undersigned Assistant U.S. Attorney as commissioner, authorizing the undersigned to 

take the actions necessary, including the issuance of commissioner’s subpoenas, to obtain 

the evidence requested, to adopt such procedures in receipt of the evidence as are 

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consistent with the intended use thereof. 

Respectfully submitted this 24th day of November, 2015.

JOHN S. LEONARDO

United States Attorney

District of Arizona

_s/Mary Bridget Minder___

M. BRIDGET MINDER

Assistant U.S. Attorney

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