United States v. Van Avermaet

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

Plaintiff, v. No. 21-cr-443-TSC-ZMF-4 JEAN PAUL VAN AVERMAET, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

I. BACKGROUND

In June 2021, a grand jury indicted Defendant Jean Paul Van Avermaet for allegedly

“enter[ing] into and engag[ing] in a combination and conspiracy to suppress and eliminate

competition by allocating customers, rigging bids, and fixing prices for contracts for the provision

of security services in Belgium, including those with the United States, through the Department of

Defense, and those with the North Atlantic Treaty Organization (NATO) Communications and

Information Agency” (“NCIA”). Indictment ¶ 16, ECF No. 1.

Defendant now moves the Court1 to issue two letters rogatory. See Mot. Issuance Req. Int’l

Jud. Assistance Produc. Docs. (“NATO Mot.”), ECF No. 78; Mot. Issuance Req. Int’l Jud.

Assistance Produc. Docs. (“BCA Mot.”), ECF No. 79 (collectively, “Mots.”). The letters rogatory

seek certain discovery from NATO and the Belgian Competition Authority (“BCA”). See NATO

Mot. at 5; BCA Mot. at 5. Defendant alleges that both entities may possess documents material to

1 On January 26, 2023, Judge Tanya S. Chutkan referred this case to the undersigned for full case management. See Min. Order (Jan. 26, 2023). 1 the preparation of his defense. See NATO Mot. at 1; BCA Mot. at 2. Defendant’s request is not

opposed by the government. See U.S. Consol. Resp. Def.’s Mots. (“Resp.”) 1, ECF No. 80.

II. LEGAL STANDARD

A “party seeking to issue a letter rogatory is asking the United States, through this Court,

to request the assistance of a foreign country in obtaining discovery.” Abraxis BioScience, LLC v.

Actavis, LLC, No. 16-cv-1925, 2017 WL 2293347, at *2 (D.N.J. May 25, 2017).2 “The decision to

issue letters rogatory lies within the discretion of the district court.” United States v. Mason, 919

F.2d 139 (4th Cir. 1990) (per curiam) (citing Leasco Data Processing Equip. Corp. v. Maxwell,

63 F.R.D. 94 (S.D.N.Y. 1973)).

III. DISCUSSION

“The standard for issuance of a letter rogatory is the same as if the evidence were located

in the United States, thus requiring Defendant[] to satisfy both the requirements of Federal Rule

of Criminal Procedure 173 and United States v. Nixon to obtain evidence that is located abroad.”

United States v. Coburn, No. 19-cr-120, 2022 WL 357217, at *15 (D.N.J. Feb. 1, 2022) (citing

418 U.S. 683, 700 (1974)) (cleaned up). “Courts must be careful that rule 17(c) is not turned into

a broad discovery device, thereby undercutting the strict limitation of discovery in criminal cases

found in Fed. R. Crim. P. 16.” United States v. Libby, 432 F. Supp. 2d 26, 30 (D.D.C. 2006)

(quoting United States v. Cuthbertson, 630 F.2d 139, 146 (3d Cir. 1980)). As interpreted by Nixon,

2 Letters rogatory typically issue to foreign sovereigns. NATO is “a political and military alliance” of thirty-two member countries. See NATO, What is NATO?, https://www.nato.int/nato-welcome/. It is not entirely clear what procedural vehicle Defendant should use to request discovery from this quasi-governmental entity; the Court accordingly finds that a letter rogatory is appropriate. See Fed. R. Crim. P. 57(b) (“A judge may regulate practice in any manner consistent with federal law, these rules, and the local rules of the district.”); United States v. Strong, 608 F. Supp. 188, 191 (E.D. Pa. 1985) (holding that letters rogatory in a criminal matter may issue under Rule 57(b)). 3 Rule 17 regulates the issuance of subpoenas. See Fed. R. Crim. P. 17. 2 “to compel production of documents under Rule 17(c), the party seeking production ‘must clear

three hurdles: (1) relevancy; (2) admissibility; and (3) specificity.’” Id. at 31 (quoting Nixon, 418

U.S. at 700). “The burden of satisfying the ‘exacting standards’ of the three-part Nixon test falls

‘on the party requesting the information.’” United States v. Fitzsimons, 342 F.R.D. 18, 20 (D.D.C.

2022) (quoting Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 386–87 (2004)).

A. Nixon Factors

“The first prong of this test—relevance—requires the Court to assess whether the

documents sought have ‘any tendency to make the existence of any fact that is of consequence to

the determination of the action more probable or less probable than it would be without the

evidence.’” Id. (quoting Fed. R. Evid. 401). If the information sought is “arguably relevant,” this

requirement “is likely satisfied.” Id. Here, documents showing whether U.S. funds were used to

pay for the NATO security-services contract may concern an element of the offense charged. See

NATO Mot. at 6. Additionally, communications describing the BCA’s instructions to Securitas

may allow Defendant to impeach government witnesses or raise certain defenses.4 See BCA Mot.

at 6. The documents sought are “arguably” relevant. See Libby, 432 F. Supp. 2d at 31.

Second, “[i]f the documents are deemed relevant, the Court must then determine whether

they would be admissible.” Id. “Admittedly, it will often be difficult at the pretrial stage to

determine with precision the admissibility of certain documents,” so if material sought is “arguably

relevant and admissible,” this “requirement is likely satisfied.” Id. (citing United States v. Orena,

883 F. Supp. 849, 868 (E.D.N.Y. 1995)). “[D]ocuments sought pursuant to a Rule 17(c) subpoena

can be deemed admissible for a variety of purposes, including impeachment.” Id. (first citing

4 The government disputes the significance of this potential evidence, see Resp. at 2, 4–5, but does not oppose the requested relief, see Resp. at 1. 3 Nixon, 418 U.S. at 701; then citing United States v. LaRouche Campaign, 841 F.2d 1176, 1180

(1st Cir. 1988)). The government has not argued that the material sought is inadmissible, nor is

there an obvious reason why it would not be. See Resp. at 1. Thus it is “arguably” admissible.

Libby, 432 F. Supp. 2d at 31.

Third, the discovery sought “must also be specific.” Id. With respect to NATO, Defendant

requests documents (1) “showing the extent to which the funds that the United States contributed

to NATO were used for the security-services contract IFBCO-15561-GSK,” (2) related to the

bidding process on that contract, and (3) reflecting internal NATO communications about the

bidding process and award decision on that contract. NATO Mot., Ex. 8, Letter Rogatory 1, ECF

No. 78-8. With respect to the BCA, Defendant requests “documents and information related to

communications between the [BCA] and the United States related to the conduct described in the

[] indictment.” BCA Mot., Ex. 8, Letter Rogatory 1, ECF No. 79-8. The Court will not “place the

defendant in the impossible position of having to provide exquisite specificity . . . while he is

denied access to the documents in question, thus making it impossible for him to be more specific.”

United States v. Poindexter, 727 F. Supp. 1501, 1510 (D.D.C. 1989). The government has not

argued specificity. See Resp. at 1. Defendant’s requests satisfy the specificity requirement.

B. International Comity

“When weighing requests for international discovery . . . courts should not overlook

factors relevant to international comity.” Jaguar Land Rover Ltd. v. DR. ING. H.C. F. Porsche

AG, No. 21-mc-62, 2021 WL 3075698, at *1 (D.D.C. June 22, 2021) (citing Arcelik A.S. v. E.I.

DuPont de Nemours & Co., 856 F. App’x 392, 396–97 (3d Cir. 2021)). Five factors inform the

comity analysis: “(1) the importance to the litigation . . . of the documents or other information

requested; (2) the degree of specificity of the request; (3) whether the information originated in the

4 United States; (4) the availability of alternative means of securing the information; and (5) the

extent to which noncompliance with the request would undermine important interests of the United

States, or compliance with the request would undermine important interests of the state where the

information is located.” Societe Nationale Industrielle Aerospatiale v. U.S. Dist. Ct. for the S. Dist.

of Iowa, 482 U.S. 522, 544 n.28 (1987).

Here, the factors weigh in favor of granting Defendant’s request. First, as described above,

the discovery sought may be relevant and material to the defense. Second, Defendant requests

specific documents tailored to discrete issues.

Third, the requests seek documents that originate with NATO and in Belgium. See NATO

Mot. at 8; BCA Mot. at 10. When information originates abroad, this “weigh[s] against issuing the

letters of request.” Arcelik, 856 F. App’x at 399. However, this can be “overcome” by the fourth

factor—whether there are “no alternative means for [Defendant] to obtain the information.” Id.

Both parties have attempted to acquire the requested information from NATO. See NATO Mot. at

3–4; Resp. at 2–4. NATO has denied the requests. See NATO Mot. at 9. Defendant has also failed

to obtain information from the BCA. See BCA Mot. at 10. There appears to be no alternative means

through which Defendant can obtain the information sought. See Arcelik, 856 F. App’x at 399.

Fifth, “the U.S. has a very important interest in a defendant being able to exercise its

discovery rights and its right to prepare a defense.” Id. (internal quotation marks omitted). And

NATO and Belgium “will ultimately decide about specific documents” they choose to produce,

obviating any concern about undermining their interests. Id. Indeed, NATO representatives have

already informed the parties that NATO “enjoys full immunity from every form of legal process”

and “every form of data or documentation handled by NCIA (as a subsidiary body of NATO) is

covered by the inviolability of NATO archives.” NATO Mot., Ex. 4 at 2–3. As for the BCA, the

5 U.S. Department of State has stated that “defendants or their defense counsel seeking judicial

assistance [from Belgium] in obtaining evidence . . . in connection with criminal matters may do

so via the letters rogatory process.” Belgium Judicial Assistance Information, U.S. Dept. of State

(Mar. 23, 2018), https://travel.state.gov/content/travel/en/legal/Judicial-Assistance-Country-

Information/Belgium.html. The Court concludes that the fifth factor weighs in favor of granting

Defendant’s request. See Arcelik, 856 F. App’x at 399–400.

IV. CONCLUSION

For the foregoing reasons, the Court GRANTS Defendant’s motions for issuance of the

requested letters rogatory. Defendant is DIRECTED to coordinate with the Clerk’s Office the

issuance of the letters rogatory with appropriate certification.

This is a final order issued pursuant to Local Criminal Rule 59.1. The parties are hereby

advised that, under the provisions of Local Criminal Rule 59.1(b) of the U.S. District Court for the

District of Columbia, any party who objects to this Order must file a written objection thereto

within fourteen days. When considering an objection, the District Judge will determine whether

this Order is clearly erroneous or contrary to law. See LCvR 59.1(c).

Zia M. Date: August 15, 2024 Faruqui ___________________________________ ZIA M. FARUQUI UNITED STATES MAGISTRATE JUDGE