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Subpoena Upheld for Trial of American in Russia

(CN) - The U.S. government must help Russia investigate an American arrested in Moscow for illegal crabbing, the 9th Circuit ruled, since federal courts have little discretion to deny requests from foreign governments under mutual legal assistance treaties.

Two court-appointed commissioners from the U.S. Attorney's Office subpoenaed the Bellevue, Wash.-based Global Fishing to turn over documents on the company's president, Arkadi Gontmakher, a U.S. citizen who is being prosecuted in Russia for illegal crabbing.

Global Fishing, which was also subpoenaed by a domestic grand jury for a criminal investigation, tried to quash the subpoena, arguing that the Russian proceedings are corrupt and illegal.

A Washington District Court denied the request, finding that the subpoena met constitutional standards, and the federal appeals panel in Seattle affirmed the decision on Monday.

The three-judge panel found that a mutual legal assistance treaty (MLAT) between the two countries limits the court's usual discretion to constitutional questions.

"When a request for assistance under the MLAT arrives before a district court, then, almost all the factors already would point to the conclusion that the District Court should grant the request," Judge Susan Graber wrote for the panel.

Graber added that the treaty specifies only three exceptions to a request under an MLAT, and the courts have little choice but to honor a request if the request does not run afoul of the U.S. Constitution or trigger those criteria.

"That article specifies three - and only three - grounds for denying a request: an exception for military crimes, an exception for security or 'other essential interests,' and an exception for requests that do not conform to the treaty," Graber wrote. "The use of three specified reasons for denial in a closed list strongly suggests that those reasons are the only permissible reasons for denying a request under the treaty."

In his motion for a protective order that would have quashed the subpoena, Gontmakher claimed that the Russian criminal justice system is corrupt and that Russia had failed to "observe certain time limits set by Russian law to investigate and prosecute Gontmakher," according to the ruling.

Graber shot down the argument.

"Appellants do not argue that the production of documents itself will cause some egregious outcome," the ruling states. "Rather, they argue that separation-of-powers and due-process concerns preclude the judicial branch from furthering these allegedly corrupt and illegal proceedings. Having reviewed the record, we are satisfied that the enforcement of the subpoena at issue here does not offend the Constitution."

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