United States District Court, E.D. Wisconsin
ORDER ON MOTION TO COMPEL PRODUCTION OF MUTUAL LEGAL
ASSISTANCE TREATY REQUEST
JOSEPH, UNITED STATES MAGISTRATE JUDGE.
me is Marcus Hutchins' motion for an order compelling the
government to disclose a Mutual Legal Assistance Treaty
(MLAT) request between the United States and Lithuania.
of background, an MLAT is an agreement by which the United
States and one or more other countries agree to assist each
other in obtaining the testimony of witnesses and/or the
production of evidence for use in bringing and prosecuting
criminal charges. Susan W. Brenner, Lori E. Shaw, Federal
Grand Jury: A Guide To Law And Practice § 14:4 (2d ed.
2017). MLAT requests are sent by governments through
established central authorities. In the case of the United
States, requests are transmitted through the United States
Department of Justice's Office of International Affairs.
Id. Because MLATs are agreements between two
sovereigns, they do not confer any private right upon third
parties to enforce their terms. United States v. $734,
578.82 In U.S. Currency, 286 F.3d 641, 659 (3rd Cir.
2002). The admissibility of evidence collected through a MLAT
request is based on U.S. law, not the laws of the foreign
sovereign. United States v. Rommy, 506 F.3d 108, 129
case, the government has disclosed to Hutchins the records it
obtained through the MLAT but has not turned over the MLAT
request itself. Hutchins moves to compel the disclosure of
the MLAT request. (Mot. to Compel at 17, Docket # 44.)
Hutchins argues that he is seeking the MLAT requests
“to help understand the government's theory of the
case. . . .” (Id.) Hutchins also asserts that
he needs the MLAT requests because the affidavit is
“bare bones” and merely “recites code
provisions.” (Id.) The government argues that
because MLATs are not signed or attested to by law
enforcement, they are not subject to disclosure under Rule
16. (Gov't Resp. at 15-16, Docket # 45.) The government
asserts that while it has turned over the materials it
received in response to the MLAT requests, Hutchins has no
legal support for the argument that the MLAT request itself
is subject to disclosure. (Id. at 16.)
February 22, 2018 hearing on Hutchins' motion to compel,
I invited the parties to submit additional authority for
their respective positions. The government submitted that
there are no bright line rules concerning the production of
an MLAT request. (Docket # 51.) The government submitted that
generally such requests are analyzed under the traditional
paradigm used to assess the discoverability of all materials
collected during an investigation. Id. Additionally,
the government submitted for consideration a district court
decision, United States v. Saltsman, No. 07-CR-0641,
(E.D.N.Y. Mar. 22, 2011). (Docket # 170, available at
http://www.pacer.gov.). The court in
Saltsman denied a defense motion for an order
compelling the government to disclose MLAT related materials.
submitted that although he found three district court cases
that touch upon the issue to some extent, he did not find any
cases addressing squarely his position that MLATs are subject
to discovery under Fed. R. Crim. P. 16 and are not internal
government documents under subsection (a)(2). (Docket # 52.)
Hutchins argues that given the absence of pertinent case law,
disclosure of the MLAT request is consistent with the open
file policy defined by Criminal Local Rule 16(a)2).
Id. Hutchins argues that the MLAT is not referenced
amongst the materials excluded from the open file policy.
the parties' positions differ on the disclosure of MLAT
requests, the parties do not appear to dispute that in the
absence of a bright line rule or case law squarely on point,
the analysis here is governed by well-established legal
principles. First, the government has an obligation under the
Due Process Clause to provide the defendant, upon request,
all evidence in its possession that is favorable to the
accused and material to guilt or punishment. Brady v.
Maryland, 373 U.S. 83 (1963). Additionally, the
government also has an obligation to produce impeachment
material. Giglio v. United States, 405 U.S. 150
(1972). Further, Fed. R. Crim. P. 16 further governs
discovery in criminal cases. Rule 16(a)(1) specifically sets
forth information which the government must disclose
“upon a defendant's request.” For example,
Rule 16(a)(1)(E) provides:
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 or portions of any of these
items, if the item 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
Fed. R. Crim. P. 16(a)(1)(E).
these well-established legal rules compel the disclosure of
the MLAT request. Hutchins has not shown that the request is
material to his defense or that failure to disclose it will
prejudice his defense. Recall the government has produced the
information received from the MLAT request. The open file
policy, defined in Criminal Local Rule 16(a)(2), also does
not compel the disclosure of MLAT requests. The open file
policy as defined under the Local Rules mirrors the
government's obligation under Fed. R. Crim. P. 16 and
nothing there compels disclosure of the MLAT. Further, the
MLAT request itself or violation of the treaty cannot be
grounds for suppression. See Saltsman, No.
07-CR-0641 at 24. As stated above, the MLAT does not confer
any private right upon a third party to enforce its terms.
Finally, a need “to understand the government's
theory of the case” cannot be basis to compel
disclosure of the request as a defendant's constitutional
right is to know the offense with which he is charged, not to
know the details of how it will be proved United States
v. Kendall, 665 F.2d 126, 135 (7th Cir. 1981).
IS THEREFORE ORDERED that Hutchins' motion to
compel the government's MLAT ...