41.00 OBTAINING FOREIGN EVIDENCE 
 AND
 OTHER
TYPES OF ASSISTANCE FOR CRIMINAL TAX CASES

Updated June 2001

41.01 INTRODUCTION

41.02 OBTAINING FOREIGN EVIDENCE OR OTHER TYPES OF 

      ASSISTANCE UNDER MUTUAL LEGAL ASSISTANCE TREATIES

41.02[1] Background

41.02[2] MLATs Currently in Effect

41.02[3] The Extent of Tax Coverage in MLATs

41.02[4] Designation of a Central Authority to Administer the MLAT for Each Treaty Partner

41.02[5] Public Law Enforcement Purpose of MLATs

41.02[6] Matters for Which Assistance Is Available under MLATs

41.02[7] Types of Assistance Available under MLATs

41.02[8] Procedures for Making Requests for Assistance

41.02[9] Contents of a Request

41.02[10] Limitations on Use of Evidence or Information Obtained

41.02[11] Obligation to Return the Items Provided

41.03 MUTUAL LEGAL ASSISTANCE UNDER FOREIGN STATUTES WHERE 

NO FORMAL TREATY RELATIONSHIP EXISTS

41.04 OBTAINING FOREIGN EVIDENCE UNDER TAX INFORMATION EXCHANGE 

AGREEMENTS AND TAX TREATIES

41.04[1] Background

41.04[2] Tax Information Exchange Agreements (TIEAs)

41.04[3] TIEAs Currently in Effect

41.04[4] Information Exchange under Tax Treaties

41.04[5] Tax Treaties Currently in Effect

41.04[6] Scope of TIEAs and Income Tax Treaties

41.04[7] Designation of a Competent Authority to Administer TIEAs and Tax 

Treaties for Each Treaty Partner

41.04[8] Procedures for Making Requests For Information

41.04[9] Contents of a Request

41.04[10] Confidentiality of Information Obtained

41.04[11] Possible Problems with Exchanging Information under TIEAs 

and Income Tax Treaties

41.05 USING LETTERS ROGATORY AND OTHER JUDICIAL PROCEDURES TO 

OBTAIN EVIDENCE IN CRIMINAL TAX CASES

41.05[1] Background

41.05[2] Deposition by Stipulation, Notice, or Commission

41.05[3] Depositions by Letters Rogatory

41.05[4] Procedures for Obtaining Assistance by Letters Rogatory

41.05[5] Problems with the Letters Rogatory Process Generally

41.05[6] Specific Problems with the Letters Rogatory Process When Used in 

Criminal Tax Cases

41.06 USING COMPULSORY MEASURES TO OBTAIN FOREIGN EVIDENCE

41.06[1] Background

41.06[2] The Use of Subpoenas or Summonses to Obtain Foreign Evidence Directly

41.06[3] The Use of Subpoenas to Obtain Testimony of a Nonresident Temporarily in 

the 

United States

41.06[4] The Use of Compelled Directives to Obtain Disclosure of Financial Matters 

Covered by Foreign Secrecy Laws

41.06[5] The Use of Subpoenas Issued to 

United States

 Citizens or Residents Abroad

41.06[6] Jurisdictional Conflicts Arising from the Use of Certain Unilateral Measures

41.07 CONCLUSION

                       41.01  INTRODUCTION

      This section provides a detailed analysis of the various means 

available to federal prosecutors for obtaining foreign evidence and other 

types of international assistance in criminal tax cases.  The means analyzed 

here include mutual legal assistance treaties (MLATs) and similar processes, 

tax information exchange agreements (TIEAs) and tax treaties, 

court-sponsored procedures for taking foreign depositions, including letters 

rogatory, and the use of unilateral compulsory measures, such as subpoenas, 

for obtaining foreign evidence.

      Obtaining foreign evidence and other types of international assistance 

under the various processes described here usually requires considerable 

amounts of time and can cause significant delays in an investigation or 

trial proceeding. Thus, a prosecutor should initiate seeking such evidence 

or assistance through the appropriate process as soon as possible.

      It is extremely important to remember that no 

United States

 

investigator or prosecutor should contact foreign authorities or witnesses, 

whether by telephone or other means, or undertake foreign travel, without 

obtaining the proper clearances or authorizations.  Prosecutors under the 

jurisdiction of the Department of Justice are required to coordinate and 

clear all such contacts and travel through the Office of International 

Affairs ((202) 514-0000).

       41.02  OBTAINING FOREIGN EVIDENCE OR OTHER TYPES OF

       ASSISTANCE UNDER MUTUAL LEGAL ASSISTANCE TREATIES

41.02[1] Background

      Mutual Legal Assistance Treaties (MLATs) create a routine channel for 

obtaining a broad range of legal assistance for criminal matters generally, 

including, inter alia, taking testimony or statements of persons, 

providing documents and other physical evidence in a form that would be 

admissible at trial, and executing searches and seizures.  These treaties 

are concluded by the United States Department of Justice (primarily the 

Criminal Division) in conjunction with the United States Department of 

State.  An MLAT creates a contractual obligation between the treaty partners 

to render to each other assistance in criminal matters in accordance with 

the terms of the treaty. It is designed to facilitate the exchange of 

information and evidence for use in criminal investigations and 

prosecutions.  Unfortunately, while many of the MLATs currently in force 

cover most 

U.S.

 tax felonies, several others have only limited coverage, at 

best, for tax offenses. 

41.02[2] MLATs Currently in Effect

      As of  June 1, 2001, the 

United States

 has MLATs with the following 

jurisdictions: Anguilla, 
Antigua
 
&
 
Barbuda
, 
Argentina
, 
Australia
, 

Austria

, 

the 
Bahamas
, 
Barbados
, 
Belgium
, 
Brazil
, the British Virgin Islands, 

Canada

, 

the Cayman Islands, the 
Czech
 
Republic
, 
Dominica
, 
Estonia
, 

Grenada

, Hong 

Kong
, 
Hungary
, 
Israel
, 
Italy
, 
Jamaica
, 
Latvia
, 
Lithuania
, 

Luxembourg

, 

Mexico
, 
Montserrat
, 
Morocco
, the 
Netherlands
 (including the 

Netherlands

 

Antilles and Aruba), 
Panama
, the 
Philippines
, 
Poland
, 
South Korea
, 

Spain

, 

St. Christopher and Nevis, St. Lucia, St. Vincent & the Grenadines, 

Switzerland, Thailand, Trinidad & Tobago, Turkey, the Turks and Caicos 

Islands, Ukraine, the United Kingdom, and Uruguay.

41.02[3] The Extent of Tax Coverage in MLATs

      The MLATs with Antigua & Barbuda, Argentina, Australia, Austria, 

Barbados, Belgium, Brazil, Canada, the Czech Republic, Dominica, Estonia, 

Grenada, Hong Kong, Hungary, Israel, Italy, Jamaica, Latvia, Lithuania, 

Luxembourg, Mexico, Morocco, the Netherlands (excluding the Netherlands 

Antilles and Aruba), the Philippines, Poland, South Korea, Spain, St. 

Christopher and Nevis, St. Lucia, St. Vincent & the Grenadines, Thailand, 

Trinidad & Tobago, Turkey, Ukraine, and the United Kingdom cover all 

criminal tax felonies under the Internal Revenue Code.  The remaining MLATs 

contain a variety of restrictions regarding assistance for tax offenses.  

Thus, the Swiss MLAT excludes tax and similar fiscal offenses from its scope 

except in cases involving organized crime.  However, assistance is available 

from the Swiss under one of their domestic mutual assistance statutes 

(referred to as an "IMAC") in any tax matter where a foreign tax authority 

can establish "tax fraud" as the term is used under Swiss law. Historically, 

the Swiss had considered the conduct underlying most U.S. criminal tax 

felonies as civil in nature, and establishing "tax fraud" as the term is 

used under  Swiss law had been a considerably difficult task. FN1]  

However, with the advent of the new Income Tax Treaty with Switzerland, the 

concept of tax fraud has been expanded and this expansion applies to 

requests made for mutual legal assistance under an IMAC.  See Note 1, 

supra.  The Cayman and Bahamian MLATs generally exclude offenses 

relating to tax laws except for tax matters arising from unlawful activities 

otherwise covered by the MLATs. FN2] Furthermore, each of these 

three treaties contains specific limitations on the use of evidence obtained 

for covered offenses, and, thus, evidence obtained for some other offense, 

is generally not available for tax purposes in civil or criminal 

investigations or proceedings which are subsequently conducted. FN3]

41.02[4]    Designation of a Central Authority to Administer the

            MLAT for Each Treaty Partner

      Every MLAT specifies central authorities to act on behalf of each 

treaty partner to make requests, to receive and execute requests, and to 

generally administer the treaty relationship. Under all of the MLATs to 

which the United States is a party, the central authority designated for the 

United States is the Director, Office of International Affairs (OIA), 

Criminal Division, U.S. Department of Justice.  [28 C.F.R § 0.64-1.]  

The central authority for the treaty partner is generally an entity located 

within the ministry of justice or its equivalent agency. 

41.02[5] Public Law Enforcement Purpose of MLATs

      The central authorities make requests under MLATs on behalf of law 

enforcement and judicial authorities in their respective countries who are 

legally responsible for investigating and prosecuting criminal conduct.  For 

the United States, such authorities include federal and state prosecutors, 

as well as  governmental agencies responsible for investigating criminal 

conduct,   or government agencies responsible for matters ancillary to 

criminal conduct, such as civil forfeiture.  Private parties are not 

permitted to make requests under MLATs.

41.02[6] Matters for Which Assistance Is Available under MLATs

      Assistance is available under the MLAT once an investigation or 

prosecution has been initiated by an appropriate law enforcement or judicial 

authority in the requesting state.  Thus, the United States may initiate a 

request for assistance under an MLAT when a criminal matter is at the trial 

stage, or is under investigation by (1) a prosecutor, (2) a grand jury, (3) 

an agency with criminal law enforcement responsibilities, such as the 

Criminal Investigation Division of the Internal Revenue Service, or (4) an 

agency with regulatory responsibilities, such as the Securities and Exchange 

Commission.

41.02[7] Types of Assistance Available under MLATs

      Generally, MLATs provide for the following types of assistance:

      a.    serving documents in the requested state;

      b.    locating or identifying persons or items in the requested state;

      c.    taking testimony or statements from persons in the requested 

      state;

      d.    transferring persons in custody in either state to the other for 

            testimony or other purposes deemed necessary or useful by the 

            requesting state;

      e.    providing documents, records, and articles of evidence located 

            in the requested state;

      f.    executing requests for searches and seizures in the requested 

      state;

      g.    immobilizing assets located in the requested state;

      h.    assisting in proceedings related to forfeiture and restitution; 

      and

      i.    any other form of assistance not prohibited by the laws of the 

            requested state.

      MLATs are specifically designed to override local laws in the 

requested states pertaining to bank secrecy and to ensure the admissibility 

in proceedings in the requesting state of the evidence obtained.  Thus, for 

example, MLATs typically contain provisions which, in conjunction with 

certain statutes, are directed at securing the admissibility of business 

records, or establishing chain of custody over an evidentiary item, without 

having to adduce the in-court testimony of a foreign witness.

41.02[8] Procedures for Making Requests for Assistance

      To make a request for assistance under a particular MLAT, a prosecutor 

or investigator should contact OIA at (202) 514-0000, request to speak to 

the attorney in charge of the country from which assistance will be 

requested, and collaborate on the preparation of the request.  Once the 

Director of OIA signs a request, it must be translated into the official 

language of the requested state, unless the particular MLAT provides 

otherwise.  The request will then be submitted in both language versions 

(English and the official language of the requested state) to the central 

authority of the requested state.

41.02[9] Contents of a Request

      Generally, MLATs require that a request contain the following 

      information:

      a.    the name of the authority conducting the investigation, 

            prosecution, or other proceeding to which the request relates;

      b.    a description of the subject matter and the nature of the 

            investigation, prosecution, or proceeding, including the 

            specific criminal offenses which relate to the matter;

      c.    a description of the evidence, information, or other assistance 

            sought; and

      d.    a statement of the purpose for which the evidence, information, 

            or other assistance is sought. 

      In addition, MLATs require that the following information be provided 

to the extent that such information is available:

      e.    information on the identity and location of any person from whom 

            evidence is sought;

      f.    information on the identity and location of a person to be 

            served, that person's relationship to the proceeding, and the 

            manner in which service is to be made;

      g.    information on the identity and whereabouts of a person to be 

            located;

      h.    a precise description of the place or person to be searched and 

            of the items to be seized;

      i.    a description of the manner in which any testimony or statement 

            is to be taken and recorded;

      j.    a list of questions to be asked of a witness;

      k.    a description of any particular procedure to be followed in 

            executing the request;

      l.    information as to the allowances and expenses to which a person 

            asked to appear in the requesting state will be entitled; and

      m.    any other information which may be brought to the attention of 

            the requested state to facilitate execution of the request.

41.02[10] Limitations on Use of Evidence or Information Obtained

      Generally, MLATs have provisions resticting the use of information or 

evidence furnished under their provisions, including conditions of 

confidentiality.  Accordingly, the law enforcement authorities of the 

requesting state must comply with these restrictions in using the 

information or evidence in the course of an investigation or prosecution.  

Although some MLATs are more restrictive, generally, once the information or 

evidence properly used in the investigation or prosecution becomes a matter 

of public record in the requesting state, it may be used for any purpose.

41.02[11] Obligation to Return the Items Provided

      Generally, MLATs provide that all original documents, records, or 

articles of evidence provided pursuant to an MLAT request must be returned 

as soon as possible to the state providing such items unless that state 

waives the right to have the items returned.  Items are typically returned 

by the prosecutor through the central authority.  Generally, copies of 

documents provided under an MLAT need not be returned unless the state which 

provides such copies specifically requests their return.    

 41.03  MUTUAL LEGAL ASSISTANCE UNDER FOREIGN STATUTES WHERE NO FORMAL 

        TREATY RELATIONSHIP EXISTS

      New effective approaches have been recently developed for obtaining 

assistance from countries with which the U.S. has no MLAT relationship.   As 

a result, letters rogatory issued by a court are no longer the exclusive 

means of securing formal legal assistance from a country with which the 

United States has no MLAT relationship.  Thus, there are a number of 

non-Mutual Legal Assistance Treaty countries with which OIA has established 

a practice of making and receiving formal legal assistance requests, dealing 

directly with its counterpart office in the foreign ministry of justice. 

      Such requests typically follow a format similar to that employed under 

MLATs, and are sometimes referred to as "MLAT-Type" requests.  Legal 

assistance in these circumstances is provided to the extent permitted by 

relevant domestic legislation.  Countries in this category include Ireland, 

Japan, New Zealand, Channel Islands, Isle of Man, and Liechtenstein.  

Contact the appropriate OIA Team at (202) 514-0000 for further details.

   41.04 OBTAINING FOREIGN EVIDENCE UNDER TAX INFORMATION EXCHANGE 

   AGREEMENTS AND TAX TREATIES

41.04[1] Background

      Tax information exchange agreements (TIEAs) and income tax treaties 

constitute bases for obtaining foreign-based documents and testimony, often 

in admissible form, for criminal and civil tax cases and investigations.  

These pacts are concluded by the United States Department of Treasury, with 

the assistance of the Internal Revenue Service and the Tax Division of the 

Department of Justice, and are administered by the Director, International, 

of the IRS.  For the purposes of obtaining foreign evidence, TIEAs are more 

specialized and effective than tax treaties. 

41.04[2] Tax Information Exchange Agreements (TIEAs)

      TIEAs are agreements which specifically provide for mutual assistance 

in criminal and civil tax investigations and proceedings.  This assistance 

comprises obtaining foreign-based documents, including bank records, and 

testimony in admissible form.  TIEAs are statutory creatures of the Internal 

Revenue Code. See 26 U.S.C. §§ 274(h)(6)(C) and 927(e).  

This statutory framework initially authorized the Secretary of the Treasury 

Department to conclude agreements with countries in the Caribbean Basin 

(thereby qualifying such countries for certain benefits under the Caribbean 

Basin Initiative), but later expanded this authority to conclude TIEAs with 

any country.

41.04[3] TIEAs Currently in Effect

      As of June 1, 2001, the United States had TIEAs in effect with the 

following countries:  Barbados, Bermuda, Costa Rica, Dominica, the Dominican 

Republic, Grenada, Guyana, Honduras, Jamaica, Marshall Islands, Mexico, 

Peru, St. Lucia, and Trinidad & Tobago. FN4]

41.04[4] Information Exchange under Tax Treaties

      The United States has income tax treaties with more than 50 countries 

in the world.  There are two principal purposes of these treaties:  (1) to 

reduce or eliminate double taxation of income earned by residents of either 

country from sources within the other country; and (2) to prevent avoidance 

and evasion of the income taxes of the two countries party to the treaty.  

To address the latter purpose, almost all U.S. income tax treaties contain a 

provision for exchanging information, similar in concept to TIEAs.  The 

Treasury Department places great importance on information exchange in these 

tax treaties and will not enter into a treaty relationship with any country 

that cannot meet the minimum standards of information exchange. 

41.04[5] Tax Treaties Currently in Effect

      As of June1, 2001, the United States had income tax treaties in force 

-- including exchange of information provisions -- with the following 

countries: Australia, Austria, Barbados, Belgium, Bermuda, Canada, China, 

Cyprus, Czech Republic, Denmark, Egypt, Estonia, Finland, France, Germany, 

Greece, Hungary, Iceland, India, Indonesia, Ireland, Israel, Italy, Jamaica, 

Japan, Kazakhstan, South Korea, Latvia, Lithuania, Luxembourg, Mexico, 

Morocco, Netherlands, New Zealand, Norway, Pakistan, Philippines, Poland, 

Portugal, Romania, Russia, Slovak Republic, South Africa, Spain, Sweden, 

Switzerland, Thailand, Trinidad & Tobago, Tunisia, Turkey, Ukraine, the 

United Kingdom, and Venezuela.  

      The Treasury Department is very active in the negotiation of new 

income tax treaties, as well as the renegotiation of income tax treaties 

currently in force. Thus, new treaty partners should be added to this list 

regularly.

41.04[6] Scope of TIEAs and Income Tax Treaties

      Under most of the TIEAs and tax treaties to which the United States is 

a party, requests for assistance may be made for any civil or criminal tax 

investigation or proceeding regarding any tax year not barred by the statute 

of limitations of the state seeking the information.

41.04[7]    Designation of a Competent Authority to Administer TIEAs and 

            Tax Treaties for Each Treaty Partner

      Every TIEA and tax treaty specifies competent authorities to act on 

behalf of each treaty partner to make requests, to receive and execute 

requests, and to administer generally the treaty relationship.  The 

Director, International (DI), Internal Revenue Service, has been designated 

to act as the Competent Authority for exchanging information under TIEAs and 

tax treaties under the authority of the Secretary of Treasury.  The specific 

office acting under the direction of the DI to make and receive requests for 

information under TIEAs and income tax treaties is the Exchange of 

Information Team.  The competent authority for the treaty partner is 

generally an entity located within the ministry of finance or its equivalent 

agency.  

41.04[8] Procedures for Making Requests For Information

      If you wish to explore making a request for evidence or information 

under a TIEA or tax treaty, simply call the general number for the Exchange 

of Information Team ((202) 874-1624) in the Office of the DI and ask to 

speak to the Exchange Analyst who is responsible for the country where the 

information is located.  Usually, the investigator or prosecutor in charge 

of the case will draft the initial version of the request and forward this 

draft to the Exchange Analyst, or the Revenue Service Representative (RSR) 

in charge of the country where the information is located, FN5]  for 

review.  Subsequently, the request is formalized and sent to the foreign 

Competent Authority for execution.

41.04[9] Contents of a Request

      A request under a TIEA or income tax treaty should contain, 

inter alia, the following:

      a.    The taxpayer's (defendant's) name and address, and, if 

            applicable, social security number, place and date of birth, and 

            whether the taxpayer is a citizen of the United States;

      b.    The names and addresses of pertinent entities affiliated with 

            the taxpayer and the nature of such affiliations;

      c.    A brief resume of the case with particular reference to the tax 

            issues; 

      d.    A detailed statement of the information sought and why it is 

      needed;

      e.    A statement of the efforts made to secure the desired 

            information prior to the request and why the efforts were not 

            successful (including comment on any relevant data supplied by 

            the taxpayer and the reasons for considering such data 

            inadequate);

      f.    If the records of a foreign affiliate of the taxpayer are to be 

            examined, the name and address of the custodian of the records 

            and a document authorizing the custodian to permit the 

            examination or an explanation as to why the authorization was 

            not obtained;

      g.    All pertinent names, addresses, leads, and other  information 

            that may be helpful in complying with the request; and

      h.    Requests for bank account information should specify the branch.

      To the extent known, the following information should also be 

transmitted with the request:

      i.    Date upon which a response is required (e.g., for statute 

            of limitations purposes) or any other facts indicating the 

            urgency of the information;

      j.    Information concerning the importance of the case and any other 

            facts which make the case unusual or worthy of preferential 

            treatment; and

      k.    The taxable years and approximate tax liability or additional 

            income involved.  

41.04[10] Confidentiality of Information Obtained

      All of our TIEAs, and virtually all of our tax treaties, currently in 

effect contain language requiring that information obtained under such 

agreements be used only for tax purposes. Obviously, such language can raise 

troublesome issues for a prosecutor conducting a grand jury investigation 

directed at both tax and non-tax crimes.  Indeed, recently certain treaty 

partners have resisted executing requests for information made in such cases 

based on their view that the obligation of confidentiality forbids use by a 

grand jury considering non-tax crimes.  To address this situation, the 

Treasury Department and the Justice Department jointly decided to undertake 

using cautionary instructions to the grand and petit juries in such cases. 

      Under this approach, the prosecutor would caution the grand jury, as 

would the trial judge the petit jury, that the evidence obtained under the 

tax agreement could not be utilized to draw inferences of guilt regarding 

the non-tax offenses.  This approach would also require the trial judge to 

ignore the evidence for the purposes of a defendant's motion to dismiss 

under Fed. R. Crim. P. 29.

41.04[11]   Possible Problems with Exchanging Information under TIEAs and 

            Income Tax Treaties

      Although exchanging information under TIEAs and tax treaties has been 

relatively successful, there are a variety of problems which can arise.  For 

example, officials of some countries having civil law systems balk at 

executing tax treaty requests in criminal tax cases, especially those 

arising from grand jury investigations.  This hesistancy arises from the 

belief that tax treaties, which they consider to be part of an 

administrative governmental process, should not be used for 

judicial matters. This problem can be aggravated where non-tax 

offenses are also under investigation, given the ever-present provision in 

these agreements dealing with confidentiality.  See 41.04[10], 

supra.  Also, certain countries will provide treaty partners only 

with information which currently exists in their tax files regarding a given 

taxpayer, and will not undertake to gather information from other sources, 

including third parties.  Finally, some treaty partners, even if they will 

undertake to gather information from sources other than their tax files, 

will not obtain and provide financial information, such as bank records, 

because of bank secrecy laws. 

    41.05  USING LETTERS ROGATORY AND OTHER JUDICIAL PROCEDURES TO OBTAIN 

           EVIDENCE IN CRIMINAL TAX CASES

41.05[1] Background

      Before the advent of tax treaties, MLATs, TIEAs, and other types of 

mutual assistance agreements, law enforcement authorities (just as private 

litigants) primarily relied upon deposition by stipulation, deposition by 

notice, deposition by commission, and letters rogatory, all judicially 

sponsored procedures, to obtain evidence abroad in both civil and criminal 

cases.  See Fed. R. Crim. P. 15.  This section briefly explores the 

basics of these various procedures and their limitations, especially in 

criminal tax cases.

41.05[2] Deposition by Stipulation, Notice, or Commission

      There are three types of procedures under which a U.S. prosecutor can 

obtain foreign source testimony without the assistance of foreign 

authorities, assuming the witness is willing to testify voluntarily and the 

foreign country's laws do not prohibit the litigant's taking of that 

testimony.  

      First, the parties to the litigation may agree to take testimony 

abroad by stipulation.  See Fed. R. Crim. P. 15(g).  Under this 

procedure, the parties simply agree as to the necessary circumstances of the 

deposition, i.e., the official before whom the testimony will be 

taken, the time and place of the deposition, the type of notice to be given, 

the manner in which the deposition is to be conducted.   If the parties can 

so agree, the stipulation procedure is the most expeditious method of taking 

foreign testimony. 

      Second, a litigant may take a foreign deposition by notice.  

See Fed. R. Crim. P. 15(d), providing that depositions in criminal 

matters shall be taken and filed in the same manner as civil actions (as 

provided for in Fed. R. Civ. P. 28(g)).  Under this procedure, the moving 

party may arrange a deposition "on notice before a person authorized to 

administer oaths in the place in which the examination is [to be] held, 

either by the law thereof or by the law of the United States,..."  Fed. R. 

Civ. P. 28(b)(1).  This party must make the necessary arrangements for the 

deposition, such as assuring the presence of the witness, scheduling the 

services of an appropriate foreign official, a reporter for the transcript, 

and, if necessary, an interpreter. 

      Third, a litigant may take a foreign deposition by commission.  

See Fed. R. Crim. P. 15(d), providing that depositions in criminal 

matters shall be taken and filed in the same manner as civil actions (as 

provided for in Fed. R. Civ. P. 28(g)).  Under this procedure, the moving 

party may arrange a deposition "before a person commissioned by the court, 

and a person so commissioned shall have the power by virtue of the 

commission to administer any necessary oath and take testimony,..."  Fed R. 

Civ. P. 28(b)(2).  This procedure is similar to the notice procedure except 

that the court appoints the person, i.e., the commissioner, before 

whom the deposition is to be taken. 

      Each of these procedures is available to United States prosecutors 

handling criminal tax cases, FN6] but, as mentioned above, only 

where the foreign-based witness voluntarily submits to the deposition and 

the particular country does not object to the evidence taking within its 

borders.  The latter condition becomes prohibitive if the state in question 

is a civil law country.  Such jurisdictions are inclined to regard evidence 

taking by any person other than their own legal authorities as violative of 

their sovereignty.  Where such circumstances bar any of these three 

approaches and no treaties or agreements for assistance are available, the 

last resort is usually to a letter rogatory to obtain evidence abroad.

41.05[3] Depositions by Letters Rogatory

      The traditional method used by United States litigants to enlist the 

assistance of foreign authorities to obtain evidence abroad, in both civil 

and criminal cases, is a letter rogatory, also known as a letter of request. 

      Basically, a letter rogatory is a formal request from a court, in 

which an action is pending, to a foreign court to perform some judicial act.  

If the foreign court honors the request, it does so based on comity rather 

than any sort of strict obligation.  As this definition suggests, a letter 

rogatory can usually only be used in a proceeding which has actually 

commenced, such as in the post-indictment stages of a criminal case or the 

post-complaint stages of a civil case, but this is not an iron-clad rule. 

FN7]  The route of a letter rogatory is quite circuitous and 

involves many diverse entities in an uncoordinated process.  Typically, a 

litigant initiates the process by applying to the court, before which the 

particular action is pending, for the issuance of a letter rogatory, 

supporting the application with a set of complicated and formalistic 

pleadings. 

      Upon signature by the court, the letter rogatory must be transmitted 

through diplomatic channels, which involves not only the U.S. State 

Department but also the foreign ministry of the country involved.  The 

foreign ministry delivers the request to the country's ministry of justice, 

which in turn delivers it to the foreign court originally contemplated to 

execute the letter request. If the request is successfully executed, the 

evidence must retrace the path of the request.

41.05[4] Procedures for Obtaining Assistance by Letters Rogatory

      The procedures for utilizing the letters rogatory process, once a 

prosecutor has secured the court's leave to do so under Fed. R. Crim. P. 15, 

are not as well defined and standardized as those for obtaining assistance 

under MLATs, TIEAs, and tax treaties.  For example, the channel for sending 

a "letter request" (the term often employed for a letter rogatory request, 

especially for the countries following the common law system of the United 

Kingdom) to certain countries is the State Department, as generally 

described above.  However, for certain countries, such as the United Kingdom 

and Hong Kong, OIA has developed an expedited channel for transmitting 

letter requests, so that certain stopping points along the way of the