Letters rogatory are the customary method of obtaining
assistance
from abroad in the absence of a treaty or executive agreement. A
letter
rogatory is a request from a judge in the United States to the
judiciary of
a foreign country requesting the performance of an act which, if
done
without the sanction of the foreign court, would constitute a
violation of
that country's sovereignty. Prosecutors should assume that the
process will
take a year or more. Letters rogatory are customarily transmitted
via the
diplomatic channel, a time-consuming means of transmission. The
time
involved may be shortened by transmitting a copy of the request
through
Interpol, or through some other more direct route, but even in
urgent cases
the request may take over a month to execute. See Paragraph
B below
(fifth item re translation and transmission).
Content: The form of a letter rogatory
depends on
the country to which it is addressed and the assistance sought.
Some
countries have statutory guidelines for granting assistance.
Assistant
United States Attorneys should seek specific guidance from the
Office of
International Affairs (OIA) before drafting a letter rogatory.
See
this Manual at 281 (drafting
guidelines).
Letters rogatory generally include: (1) background (who is
investigating whom and for what charge); (2) the facts (enough
information
about the case for the foreign judge to conclude that a crime has
been
committed and to see the relevance of the evidence that is being
sought);
(3) assistance requested (be specific but include an elastic clause
to allow
subsequent expansion of the request without filing an additional
letter
rogatory); (4) the text of the statutes alleged to have been
violated; and
(5) a promise of reciprocity.
Letters rogatory must be signed by a judge and, normally,
authenticated by (1) an apostille, (2) an exemplification
certificate, (3) a
chain certificate of authentication, or (4) as directed by OIA. If
the
requested state has ratified the Hague Convention Abolishing the
Requirement
of Legalization of Foreign Public Documents, it is preferable to
use an
apostille. The chain certification is a cumbersome process
involving
authentication by the Department of Justice, the Department of
State, and
the embassy of the foreign country to which the letter rogatory is
directed.
Consult OIA to ascertain which method to use because
authentication
requirements change frequently.
Procedure: First, obtain a model from OIA and check
with OIA to
ascertain the requirements of the particular country.
Second, prepare a draft (see this Manual at 281 for drafting guidelines)
and
send it to OIA for clearance.
Third, secure a judge's signature. Submit the cleared final
to the
district court in two originals under cover of an application for
issuance
of letters rogatory and a memorandum in support, models of which
have been
obtained from OIA. One signed original letter rogatory remains
with the
court.
Fourth, authenticate as directed by OIA. Unless OIA has
instructed
you differently, affix an apostille or other authentication to the
signed
duplicate original and send it and two copies to OIA.
Fifth, make arrangements for translation (see this Manual at 282) of the letter rogatory
(not
the application or supporting memorandum) and send the duplicate
original
with translation to OIA, which will transmit it to the Department
of State,
the American Embassy in the country concerned, or directly to the
appropriate ministry or authority in the country concerned. If OIA
transmits the letter rogatory with translation via the diplomatic
channel,
the Embassy will send it to the Foreign Ministry under cover of a
diplomatic
note, the Foreign Ministry will usually refer it to the Ministry of
Justice,
and the Ministry of Justice will usually forward it to the proper
judicial
authority where it will be executed. Normally, the evidence, once
obtained,
is returned through the same channel by which the request was
transmitted.
In some cases, the request is sent to an attorney in the foreign
jurisdiction who is retained to present the request, obtain the
evidence,
and deliver it to the United States.