gov't opp 12-1236
TRANSCRIPT
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NO. 12-1236
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT_______________
INRE:REQUESTFROMTHEUNITEDKINGDOM
PURSUANTTOTHETREATYBETWEENTHEGOVERNMENTOFTHE
UNITEDSTATESOFAMERICAANDTHEGOVERNMENTOFTHE
UNITEDKINGDOMONMUTUALASSISTANCE
INCRIMINALMATTERSINTHEMATTEROFDOLOURSPRICE
UNITED STATES OF AMERICA,
PETITIONER-APPELLEE
V.
TRUSTEES OF BOSTON COLLEGE,
MOVANT-APPELLANT
_______________
ON APPEAL FROM AN ORDER
ENTERED IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
_______________
BRIEF OF THE UNITED STATES
_______________
CARMEN M.ORTIZ
UNITED STATES ATTORNEY
RANDALL E.KROMM
ASSISTANT U.S.ATTORNEY
JOHN JOSEPH MOAKLEY FEDERAL
COURTHOUSE
1COURTHOUSE WAY
SUITE 9200
BOSTON,MASSACHUSETTS 02210
(617) 748-3381
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TABLE OF CONTENTS
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1. The subpoenas and motions to quash. . . . . . . . . . . . . . . . . . . . . . . . . . 3
2. The December 16, 2011 Memorandum and Order. . . . . . . . . . . . . . . . 6
3. Subsequent proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4. The January 20, 2012 Findings and Order. . . . . . . . . . . . . . . . . . . . . 12
5. This Courts July 6, 2012 decision. . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
I. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN
DETERMINING THE DOCUMENTS TO BE PRODUCED IN RESPONSE
TO THE COMMISSIONERS SUBPOENA. . . . . . . . . . . . . . . . . . . . . . . . 16
A. Standard of review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
B. In Re: Requestforecloses Boston Colleges argument that the
district court was required to order the production only ofmaterial directly relevant to the UKs request.. . . . . . . . . . . . . . . . 17
C. Boston College identifies no other error in the district
courts determination of the documents to be disclosed.. . . . . . . . . . 21
i
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CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
ii
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TABLE OF AUTHORITIES
CASES
Branzburg v. Hayes,
408 U.S. 665 (1972).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 19-21
Cusumano v. Microsoft,
162 F.3d 708 (1st Cir. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 14, 16, 19
In re Grand Jury Subpoena,
138 F.3d 442 (1st Cir. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
In re Premises Located at 840 140th Avenue NE, Bellevue, Washington,
634 F.3d 557 (9th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
In re: Request from the United Kingdom Pursuant to the Treaty Between the
Government of the United States of America and the Government of the
United Kingdom on Mutual Legal Assistance in Criminal Matters in the
Mater of Dolours Price,
Nos. 11-2511, 12-1159 (1st Cir. July 6, 2012). . . . . . . . . . . . . . . . . . . passim
In re Special Proceedings,
373 F.3d 37 (1st Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 17, 19
United States v. Catalan-Roman,
585 F.3d 453 (1st Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
United States v. Farrell,
672 F.3d 27 (1st Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
United States v. LaRouche Campaign,
841 F.2d 1176 (1st Cir. 1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
University of Pennsylvania v. Equality Employment Opportunity Commission,
493 U.S. 182 (1990).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
iii
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STATUTES
28 U.S.C. 1291.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
18 U.S.C. 3512.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 6
iv
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STATEMENT OF JURISDICTION
The district court had subject matter jurisdiction because the subpoenas were
requested and issued pursuant to federal law. See 18 U.S.C. 3512. The district
courts final order denying the motion to quash of the movant, the Trustees of
Boston College (Boston College), and ordering the production of documents was
docketed on January 20, 2012. [D.47]. Boston College filed a timely notice of1
appeal on February 21, 2012. [D.57]. This Court has jurisdiction over Boston
Colleges appeal from this final order pursuant to 28 U.S.C. 1291.
STATEMENT OF ISSUES
1. The district court did not abuse its discretion in determining, afterin
camera review, that Boston College was required to provide to the United States
certain confidential interview materials responsive to a subpoena issued pursuant
to the US-UK MLAT.
The citation [D._] refers to a docket entry. Other citations are as follows.1
The citations [Br._] and [Add._] refer, respectively, to Boston Colleges brief and
addendum. The citation [JA:_] refers to Boston Colleges joint appendix. The
citation [S.App._] refers to the governments ex parte supplemental sealed
appendix.
1
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STATEMENT OF THE CASE
On August 4, 2011, the United States, acting through a Commissioner duly2
appointed pursuant to 18 U.S.C. 3512 and pursuant to a legal assistance treaty
between the United States and the United Kingdom (UK) (the US-UK
MLAT), served on Boston College subpoenas requesting recordings, documents,3
and other materials in its possession relating to the 1972 abduction and death of
Jean McConville. [Add.4; D.12]. Boston College moved to quash the subpoenas.
[D.12]. After an in camera review of over 1,000 pages of transcripts and other
documents, the district court (Young, J.) denied the motion to quash and ordered
When the subpoenas were served, the Commissioner was Assistant United2
States Attorney (AUSA) Todd F. Braunstein. In September 2011, AUSA John T.
McNeil succeeded AUSA Braunstein as Commissioner. [D.20]. In June 2012, First
Assistant United States Attorney Jack W. Pirozzolo succeeded AUSA McNeil as
Commissioner. [D.68].
The US-UK MLAT, which is in full force and effect, is formally known as the3
Treaty Between the Government of the United States of America and the Government
of the United Kingdom and Northern Ireland on Mutual Legal Assistance in Criminal
Matters, signed at Washington, D.C., on January 6, 1994 (the 1994 Treaty), S.
Treaty Doc. 104-2, as amended by the Instrument as contemplated by Article 3(2) of
the Agreement on Mutual Legal Assistance between the United States of America and
the European Union signed 25 June 2003, as to the application of the Treaty between
the Government of the United States of America and the Government of the United
Kingdom of Great Britain and Northern Ireland on Mutual Legal Assistance inCriminal Matters signed 6 January 2004, signed at London on December 16, 2004 (the
2004 Instrument), S. Treaty Doc. No. 109-13. The Annex to the 2004 Instrument
reflects the integrated text of the provisions of the 1994 Treaty and the Agreement on
Mutual Legal Assistance between the United States of America and the European
Union, signed June 25, 2003.
2
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the production of certain documents and recordings. [Add.51-55; JA:201]. On
April 24, 2012, this Court stayed the district courts order pending appeal with the
governments assent.
STATEMENT OF FACTS
1. The subpoenas and motions to quash.
In May 2011, a Commissioner appointed pursuant to the US-UK MLAT
issued subpoenas to: (i) the John J. Burns Library at Boston College; (ii) Robert K.
ONeill, the Director of the Burns Library; and (iii) Thomas E. Hachey, Professor
of History and Executive Director of the Center for Irish Studies at Boston College,
seeking documents and records relating to interviews with Brendan Hughes and
Dolours Price, former members of the Irish Republican Army (IRA). [Add.4].
The interviews of Hughes and Price were part of a group of interviews conducted
between 2001 and 2006 with participants in the Troubles in Northern Ireland as4
part of an oral history project known as the Belfast Project. [Add.4-5; JA:55].
Under the directorship of Ed Moloney, the Belfast Project recorded approximately
200 interviews with about 40 different individuals who were members of groups
involved in the Troubles, including the IRA and the Ulster Volunteer Force
The materials held by Boston College also included additional interviews4
conducted with Dolours Price in 2010.
3
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(UVF). [Add.5,7; JA:143]. The resulting interviews were stored in a limited-
access portion of the Burns Library. [Add.6].
Boston College provided the United States with information relating to
Hughes, who had passed away, but declined to provide the documents relating to
Price. [Add.3]. Boston College subsequently moved on behalf of the subpoena
recipients to quash the United Statess request for the Price materials. [Id.; D.5].
In its motion, Boston College contended that the interviews were granted in
exchange for promises of confidentiality and should be protected from disclosure
as confidential academic research materials. [Add.8, 34]. Boston College also
argued that disclosure of the interviews would have adverse consequences,
including a chilling effect on future oral history projects and possible retaliation
against interviewees and against one of the Belfast Project interviewers, Anthony
McIntyre, who was himself a former IRA member. [Add.8; JA:54-57]. Boston
College additionally argued that the district court should undertake an in camera
review of the materials to determine which, if any, should be disclosed. [D.5,
p.17].
The United States opposed the motion to quash. [D.7]. The United States
argued that the US-UK MLAT strictly circumscribed the district courts authority
to review the subpoena, requiring the court to enforce the subpoena unless it
4
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violated a constitutional guarantee or a federally recognized testimonial privilege
(such as the attorney-client privilege). [D.7, p.8]. The United States further argued
that, to the extent the district court found it necessary to consider whether the
materials were protected from disclosure by the First Amendment, it should be
guided byBranzburg v. Hayes, 408 U.S. 665 (1972), which held that a reporter has
no First Amendment right to refuse to answer relevant and material questions
asked during a good-faith grand jury investigation. [D.7, p.14 (quoting408 U.S.
at 708)]. Based on these principles, the government argued that Boston College
had not identified any basis justifying its refusal to produce the requested
documents. [D.7, pp.16-21].
In August 2011, while the motion to quash was pending, the Commissioner
served a second set of subpoenas. [Add.4]. These subpoenas requested the
production of all materials relating to any and all interviews containing
information about the abduction and death of Mrs. Jean McConville. [Id.].
McConville was a widowed mother of 10 who disappeared in 1972 and is believed
to have been murdered shortly after her abduction by members of the IRA. [JA:74,
76]. Boston College moved to quash these subpoenas on the same grounds as it
had the earlier subpoenas. [D.12]. A short time later, Moloney and McIntyre
moved to intervene in the motions to quash. [D.18]. The United States opposed
5
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both the supplemental motion to quash and Moloney and McIntyres motion to
intervene. [D.13, 24].
2. The December 16, 2011 Memorandum and Order.
On December 16, 2011, the district court issued a memorandum and order
that resolved a number of issues relating to the motions to quash and also
addressed the motion to intervene. The court first considered whether it had
discretion to review a subpoena issued by a commissioner pursuant to an MLAT.
[Add.22]. Construing the language of the US-UK MLAT and 18 U.S.C. 3512,
the court concluded that it retained discretion to conduct such review. [Add.26].
The district court next turned to the standard to be applied in reviewing the
subpoenas. [Add.27]. After considering relevant precedents, the court found that
the appropriate standard of review is analogous to that used in reviewing grand
jury subpoena[s]. [Add.33]. Under this standard, the court held that a properly
authorized subpoena is entitled to deference and granted a presumption of
regularity. [Add.32; see also id. (noting that context of MLAT makes it
appropriate for courts to be extremely deferential to government requests)]. The
court further found that the strong factors in favor of the government concerning a
subpoena requested pursuant to an MLAT could be overcome only upon a
showing of a constitutional violation or applicable privilege. [Add.34].
6
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Turning to Boston Colleges claim that the materials were protected by the
First Amendment, the court rejected the proposition that there was a recognized
privilege protecting confidential academic information from disclosure. [Add.37].
Nonetheless, the court went on to evaluate Boston Colleges First Amendment
rights under a hybrid test it derived from this Courts precedent, in particular
Cusumano v. Microsoft, 162 F.3d 708 (1 Cir. 1998), and In re: Specialst
Proceedings, 373 F.3d 37 (1 Cir. 2004). [Add.34-41]. Under this test, the courtst
first considered three threshold questions: whether the disclosure was directly
relevant to a nonfrivolous claim or inquiry undertaken in good faith; whether the
materials were readily available from a less sensitive source; and whether the
information could be considered confidential. [Add.41-42]. The court concluded
that these standards were met, finding that the subpoenas were in good faith and
relevant to a nonfrivolous criminal inquiry, that the materials were not readily
available from a less sensitive source, and that the materials were meant to be
confidential. [Id.].
The district court then balanc[ed] the governments need for the requested
information against the potential harm to the free flow of information. [Add.42].
Here, the court found that the UKs request concerned serious allegations of
crimes including murder, conspiracy to murder, incitement to murder, . . .
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kidnapping and causing grievous bodily harm and that this weigh[ed] strongly in
favor of disclosing the confidential information. [Add.45]. The court
acknowledged that, [i]n general, the compelled disclosure of confidential research
does have a chilling effect, and that the disclosure could have a negative impact
on other oral history projects (although not this one, since the Belfast Project was
complete), but ultimately ruled that this did not justify quashing the subpoenas.
[Add.45-48]. The district court then ordered that the material be turned over to the
court forin camera review pursuant to the standards it had announced. [Add.48].
The court denied Moloney and McIntyres motion to intervene. [Id.].
Neither the United States nor Boston College appealed from the December
16, 2011 memorandum and order. Moloney and McIntyre, however, appealed5
from the denial of their motion to intervene and from the dismissal of a separate
civil action challenging the MLAT request. [D.39]. On July 6, 2012, while this6
appeal was pending, this Court issued its decision in Moloney and McIntyres
appeals. See In re: Request from the United Kingdom Pursuant to the Treaty
The United States, having prevailed in the district court, did not need to appeal.5
Nonetheless, the United States continued to note its objection to the courtsdetermination that it should undertake any weighing of First Amendments interests
in reviewing the documents and that any standard other than that ofBranzburgshould
apply. [See JA:188-89;see also D.36 (S.App.6); D.48].
The two appeals were consolidated, expedited, and argued on April 4, 2012.6
8
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Between the Government of the United States of America and the Government of
the United Kingdom on Mutual Legal Assistance in Criminal Matters in the Matter
of Dolours Price (In re: Request), Nos. 11-2511, 12-1159, slip op. (1 Cir. Julyst
6, 2012). As relevant here, the substance of that decision is discussed below.7
3. Subsequent proceedings.
On December 20 and 22, 2011, the district court held conferences to discuss
the process of conducting its in camera review. At the conferences, Boston
College revealed that the Price materials included 13 interviews and that there were
192 additional interviews (a number subsequently revised downward to 176),
involving 24 other IRA-affiliated individuals, that potentially contained
information responsive to the second set of subpoenas. [Add.51; JA:158-59]. The8
court informed the parties that it would be performing the in camera review itself,
beginning with the Price materials. [JA:147].
At the December 20 conference, the United States urged the district court to
take an inclusive view of what documents were responsive to the subpoenas,
noting that the court was taking on the role that ordinarily the UK government or
A copy of this slip opinion is contained in the United Statess addendum.7
Boston College also stated that there were additional interviews involving non-8
IRA related individuals. The parties agreed that these materials were unlikely to
contain relevant information and that Boston College would take responsibility for
reviewing these materials. [JA:158].
9
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the United States government would take, . . . looking with[] the eye of an
investigator at investigative materials. [JA:155]. The court stated that it
understood and invited the United States to submit, ex parte and under seal, any
additional information it believed would assist the court regarding the context of
the criminal conduct to which the subpoena requests related. [JA:156]. The
government subsequently did so, supplementing earlier ex parte filings discussing
the nature of the investigation. [See S.App.6-14;see also S.App.1-5; D.8].
At the second conference, the district court provided additional information
about its review process. The court stated that, on the one hand, it would be
looking at the materials to see whether, fairly read, they fall within the scope of
the subpoena. [JA:173]. In doing so, the court explained, it would not be
reviewing for any issue of relevance as [] attorneys would think of it meaning
an evaluation of the evidence for materiality [and] logical relevance to particular
charges because it did not have sufficient information about the UK investigation
or the crimes charged to do that. [JA:172-73]. It would, however, be checking to
see whether the data produced conforms to the subpoena, and if material
relate[d] entirely to other events, other times than called for in the subpoena, it
would not order the material produced. [JA:173].
10
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On the other hand, the court stated, it was balancing [disclosure] against
the free flow of information, meaning that it would maintain a sensitivity to the
importance of the free flow of information in our society and the essential role that
our institutions of higher education here play in that. [JA:173-74]. On this point,
the court noted that, having begun its review, it believed the materials were of
valid academic interest[] and that Ms. Price, at least, would not have said what
she did if she thought the information would be revealed. [JA:174]. The court9
also explained that it was still thinking about how to weigh the impact of
disclosure on the free flow of ideas and was continuing to review information on
this subject. [JA:174-79].
At the conclusion of the conference, Boston College asked that the district
court, when reviewing the Price materials, consider the purposes of the underlying
investigation and exclude material that was not relevant to that purpose. [JA:192].
The district court responded that it d[id not] think it [was] the role of [the] court to
perform a relevancy inquiry. [Id.].
The court later qualified the latter statement, in light of information showing9
that Price, in published interviews, had revealed details of her IRA involvement.
[JA:189].
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4. The January 20, 2012 Findings and Order.
On December 27, 2011, the district court issued an order requiring Boston
College to turn over the Price materials in their entirety, which Boston College did
not appeal. [JA:195-97]. On January 20, 2012, the court issued a separate
Findings and Order addressing the second set of subpoenas. [Add.51-55]. The
court explained that it had personally conducted a review of the transcripts of
interviews relating to 24 interviewees over 1,000 pages of material pursuant to
the standards described in its prior rulings, sensitive that the requesting state
desires the subpoena to be read expansively. [Add.52; JA:201]. Having done so,
the court found that six interviewees mention[ed] the disappearance of Jean
McConville. [Id.]. Of these, one interviewee provide[d] information responsive
to the subpoena and a second had proffer[ed] information that, if broadly read, is
responsive to the subpoena. [Id.]. Three others ma[d]e passing mention of the
incident, although the court could not discern whether these three [were]
commenting from personal knowledge, from hearsay, or are merely repeating local
folklore. [Id.]. The sixth provided information that the court determined, in
context, did nothing more than express [a] personal opinion on public disclosures
made years after the incident. [Id.]. The court ruled that Boston College should
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produce the full series of interviews for the first five individuals, but need not
produce materials relating to the sixth individual. [Id.].
The court also stated that two other interviewees had mention[ed] a
shadowy suborganization within the Irish Republican Army that may or may not
be involved in the incident (the time period and geographical location within
Northern Ireland are generally congruent with the incident). [Id.]. The court
noted that the references were made at such a vague level of generality that it
was virtually inconceivable that UK authorities did not already have the
information. [Add.52-53]. Nonetheless, the court determined that Boston College
should produce the two specific transcripts in which this organization was
discussed together with sufficient identifiers to ascertain the identity of the
interviewees. [Add.53]. The court did not require any other materials to be
produced.
The district court stayed its order and this Court subsequently extended that
stay pending appeal, with the governments assent. [D.67]. Thus, no materials
have been turned over pursuant to the January 20 order.
5. This Courts July 6, 2012 decision.
Moloneys and McIntyres appeals from the district courts denial of their
motion to intervene and dismissal of their separate civil action raised a number of
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arguments going to the merits of the district courts December 16, 2012 ruling. Of
particular relevance here, Moloney and McIntyre argued that the district courts
order declining to quash the Commissioners subpoenas infringed First
Amendment protections accorded to confidential academic materials under this
Courts precedents, including Cusumano, 162 F.3d 708. See In re: Request, slip
op. at 32. In its July 6, 2012 decision, this Court addressed and rejected Moloneys
and McIntyres argument. Id. at 32-41.
In doing so, the Court bypassed the question whether the district court had
discretion to quash the subpoena in the first place and decided the merits of the
First Amendment claim. Id. at 28-30. On the merits, the Court held that the scope
of any applicable academic privilege protecting the Boston College materials was
controlled by Branzburg, which established that neither the First Amendment
nor any common law privilege was violated by requiring the production of
confidential materials in response to a criminal subpoena. Id. at 33. The Court
also found relevant the Supreme Courts decision in University of Pennsylvania v.
Equal Employment Opportunity Commission, 493 U.S. 182 (1990), which rejected
a universitys claim of academic privilege for peer review materials and also
rejected a requirement that there be a judicial finding of particularized relevance
before such materials should be disclosed in response to a subpoena in a tenure
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discrimination case. Slip op. at 35 (citing University of Pennsylvania, 493 U.S. at
188, 194). The Court concluded, based on these precedents, that Moloney and
McIntyre simply ha[d] no constitutional claim against production of the
materials; thus, their assertions of such rights were properly rejected and the
district courts denial of the motion to quash not an abuse of discretion. Slip op.
29-30, 40 & n.27.
SUMMARY OF ARGUMENT
In this appeal addressing the same collection of academic materials at issue
in In re: Request, Boston College contends that the district court abused its
discretion in its January 20, 2012 Findings and Order by requiring the production
of documents that were not directly relevant to the subpoena. This claim is
foreclosed by this Courts recent decision in In re: Request, which rejected the
contention that this Courts precedents warrant the application of any heightened
scrutiny or relevance requirement to the Belfast Project materials. Absent such a
requirement, Boston College identifies no basis for concluding that the district
courts review of the materials constituted an abuse of discretion, and the district
courts order should therefore be affirmed.
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ARGUMENT
I. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN
DETERMINING THE DOCUMENTS TO BE PRODUCED IN
RESPONSE TO THE COMMISSIONERS SUBPOENA.
Boston Colleges public brief makes, at bottom, a single legal argument
that this Courts precedents required the district court to order the disclosure only
of information directly relevant to the UKs request and that the courts January
20, 2012 order violated this requirement. This argument is foreclosed by this
Courts recent decision in In re: Request, which establishes that no First
Amendment or common law privilege protects the Belfast Project materials from
being produced in response to the Commissioners subpoenas.
A. Standard of review.
This Court reviews a district courts denial of a motion to quash a subpoena
for abuse of discretion. United States v. Catalan-Roman, 585 F.3d 453, 462 (1st
Cir. 2009). Where a party claims that the court applied an erroneous legal standard
in denying its motion to quash, that claim is reviewed de novo, if preserved. See In
re Grand Jury Subpoena, 138 F.3d 442, 444 (1 Cir. 1998); accord Cusumano, 162st
F.3d at 713. If not preserved, a claim of legal error is reviewed only for plain
error. See United States v. Farrell, 672 F.3d 27, 29 (1 Cir. 2012). Here, reviewst
arguably should be only for plain error. While Boston College questioned the
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district courts statement that it would not review for relevance, it did not
specifically argue, as it does now, thatIn re Special Proceedings required the court
to disclose only materials directly relevant to the subpoena. The standard of
review does not matter, however, because Boston Colleges claim is foreclosed in
any event.
B. In Re: Request forecloses Boston Colleges argument that the
district court was required to order the production only of
material directly relevant to the UKs request.
Relying on language in In re Special Proceedings, 373 F.3d 37, Boston
College argues that, due to the First Amendment concerns present in this case, the
district court could order the disclosure only of information from the Belfast
Project that it determined to be directly relevant to the purposes for which the
information was sought. [Br.31-32]. Because the court did not limit the disclosure
to directly relevant materials, Boston College argues, it abused its discretion.
[Br.34-37]. This argument fails at its first step, as this Courts decision inIn re:
Requestestablishes that the First Amendment does not provide a basis for Boston
College to withhold these materials.
At the outset, the United States notes that this case, like In re: Request,
implicates the threshold question of whether the district court had discretion under
3512 and the US-UK MLAT to consider First Amendment claims like those
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raised here. It remains the United Statess position that the court did not have such
discretion. As the United States argued below, the US-UK MLAT imposes a
mandatory obligation on the parties to provide assistance in criminal investigations
when asked. [D.7, pp.6-7]. While the treaty allows the United States to decline to
execute a request or to delay or narrow such execution under particular
circumstances, it reserves the authority to take these actions to the Attorney
General, not the courts. [D.7, pp.7-8]. To the extent courts retain discretion, it is
limited to circumstances where enforcement would offend constitutional
guarantees, see In re Premises Located at 840 140 Avenue NE, Bellevue,th
Washington, 634 F.3d 557, 572 (9 Cir. 2011) (discussing request under the US-th
Russia MLAT), or violate a federally-recognized privilege, such as the attorney-
client or spousal privileges. [See D.7, pp.8-9 & n.4 (citing legislative materials and
precedent supporting narrow scope of district court discretion)]. Resolution of this
appeal, however, does not require this Court to address that question for the same
reason that it did not need to be addressed in In re: Request: Boston College
articulates no valid basis for concluding that whatever discretion the court
possessed was abused. Slip op. at 29-30.10
As noted above, the United States did not appeal because, although it objected10
to the standard employed by the district court and its in camera review, the
government was satisfied with the result reached by the district court. The
government urges the Court not to endorse the standard or process employed by the
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Boston Colleges argument on appeal starts from the premise that this Court,
in cases like Cusumano and In re Special Proceedings, has afforded special
protection to confidential academic research materials of the kind at issue here
that requires heightened sensitivity and a finding of direct relevance before
they could be disclosed to the United States pursuant to the US-UK MLAT.
[Br.21-22, 28-32]. This protection, Boston College contends [Br.21], is greater
than that suggested by the Supreme Courts decision inBranzburg, which declined
to find that newspaper reporters had any privilege grounded in the First
Amendment or the common law to refuse to disclose confidential information in
response to a properly issued grand jury subpoena. 408 U.S. at 690-91 ([W]e
perceive no basis for holding that the public interest in law enforcement and in
ensuring effective grand jury proceedings is insufficient to override the
consequential, but uncertain, burden on news gathering that is said to result from
insisting that reporters, like other citizens, respond to relevant questions put to
them in the course of a valid grand jury investigation or criminal trial.). In Boston
Colleges view, the district courts abuse of discretion occurred because the court
failed to implement these special protections in conducting its review of the
district court. If the Court reaches the issue, it is the United Statess position that the
district court's discretion is limited to evaluating whether the issuance of a subpoena
would offend some constitutional guarantee or violate a recognized federal privilege.
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Belfast Project documents. [See Br.34 (district court abused its discretion because
it used the wrong test in its in camera review)].
Boston Colleges argument is untenable afterIn re: Request., which squarely
rejected the claim that First Circuit precedent addressing confidential academic
information provides a basis for objecting to the disclosure of Belfast Project
materials pursuant to the UKs MLAT request. In re: Requestacknowledged the
prior cases Boston College cites as affording greater protections than Branzburg,
but concluded that those cases arose in distinguishable circumstances, while this
case is closer toBranzburgitself. Slip op. at 36-37. Indeed, the Court noted that
[t]he law enforcement interest here a criminal investigation by a foreign
sovereign advanced through treaty obligations is arguably even stronger than the
governments interest in Branzburg. Id. at 36-37. As a result, Branzburg
controls. Id. at 33. Applying theBranzburganalysis, the Court concluded that the
interests that Moloney and McIntyre asserted in favor of protecting the Belfast
Project material, including concerns of a chilling effect on academic research,
potential threat[s] [to] job security or personal safety, and dishonor or
embarrassment, had been considered and found insufficient in Branzburg and,
as a result, necessarily [were] insufficient here. Id. at 38-39.
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In re: Requests holding applies with equal force to Boston Colleges claim
here, which asserts the same rights in connection with the same academic
materials. Given In re: Requests conclusion that the protections afforded the
Belfast Project materials in this context are measured by Branzburg, and that those
protections are not infringed by the disclosure of those materials pursuant to the
US-UK MLAT, Boston Colleges claim cannot succeed. The district court had no
obligation to go beyondBranzburgby reviewing the Belfast Project materials with
heightened sensitivity and authorizing the disclosure of only directly relevant
documents; as a result, the court did not abuse its discretion by failing to do so.
C. Boston College identifies no other error in the district courts
determination of the documents to be disclosed.
While the foregoing provides sufficient basis to reject Boston Colleges
appeal, a further brief response is warranted to address Boston Colleges
suggestion, in addition to its legal argument, that the district court improperly
ordered the disclosure of documents that simply bore no relationship to the
Commissioners subpoenas and/or the MLAT request. [Br.38-40]. This
suggestion also lacks support.
First, the United States notes that it did not propose or agree with the in
camera review process that procedure was urged by Boston College. [D.5, p.17].
Having persuaded the district court to undertake the task of reviewing more than a
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thousand pages of documents to determine what should be turned over, Boston
College faces a high hurdle in arguing that this Court should revisit the courts
judgment. This point was made by this Court in United States v. LaRouche
Campaign, which emphasized the near-final effect of a district courts decision
regarding the documents to be disclosed afterin camera review, which is justified
by the deference accorded the district courts in making this type of determination
as well as the fact that a party resisting disclosure would not normally have
detailed knowledge regarding the needs that animated the request in the first
place. 841 F.2d 1176, 1183 (1 Cir. 1988).st
These considerations have particular import here, where the district court
received and considered non-public, ex parte information regarding the scope of
the investigation. [Discussion Filed Separately Under Seal]. In light of this
information, the district court reasonably chose to read the subpoena
expansively. [Add.52].
Boston College also misstates the record in suggesting that the district court
abandoned any attempt to assess the relevance of the documents selected. [Br.34-
35]. The courts statements at the December 22, 2011 conference make plain that
it was declining only to review[] for any issue of relevance as [] attorneys would
think of it in terms of an in-court proceeding, meaning the materiality [and]
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logical relevance of the information to particular criminal charges. [JA:172-73].
The court affirmed that it would be reviewing the materials for relevance in a less
formal sense, that is to see whether, fairly read, they fall within the scope of the
subpoena. [JA:173]. This distinction was reasonable. Because the information
was sought in the context of a broad criminal investigation, rather than in a charged
case, the court was not well-positioned to judge materiality or logical relevance.
Rather, the more plausible standard for relevance was whether the information
was responsive to the subpoena.
Nor is any error demonstrated by the district courts statement in its January
20, 2012 order that only one interviewee provided information fully responsive
to the subpoena, while another was said to have done so only if the information
was broadly read and three others merely made passing mention of the
incident involving McConville. [Br.38]. Read in the context of the record as a
whole, and in light of the information sought by the UK, these statements do not
establish that the court was ordering the production of documents that were outside
the proper scope of the subpoena. Rather, the courts statements are reasonably
read as reflecting its effort to be transparent about the differing degrees to which
the interviewees had discussed the McConville abduction while respecting the fact
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that much of what it knew regarding the contents of the interviews (and the nature
of the UKs request) was not a matter of public record.
In light of the foregoing, the government is aware of no basis for concluding
that the district court abused its discretion in determining the Belfast Project
documents that should be turned over in response to the Commissioners subpoena.
The district courts order should be affirmed.
CONCLUSION
For these reasons, the government respectfully requests that the Court affirm
the district courts order.
Respectfully submitted,
CARMEN M. ORTIZ
United States Attorney
By: /s/Randall E. Kromm
RANDALL E. KROMM
Assistant U.S. Attorney
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CERTIFICATE OF COMPLIANCE WITH
Rule 32(a)
Certificate of Compliance with Type-Volume Limitation
Typeface Requirements, and Type Style Requirements
1. This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because this brief contains 5,334 words (an opening or
answering brief may not exceed 14,000 words, a reply brief may not exceed
7,000 words), excluding the parts of the brief exempted by Fed. R. App. P.
32(a)(7)(B)(iii) (i.e., the corporate disclosure statement, table of contents,
table of citations, addendum, and certificates of counsel).
2. This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) becausethis brief has been prepared in proportionally spaced typeface using Times
New Roman 14 point, in Word Perfect 14.
/s/Randall E. Kromm
Assistant U.S. Attorney Randall E. Kromm
Dated: July 18, 2012
25
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CERTIFICATE OF SERVICE
I, Randall E. Kromm, Assistant U.S. Attorney, hereby certify that on July
18, 2012, I electronically served a copy of the foregoing document on the
following registered participant of the CM/ECF system:
Jeffrey Swope, Esq.
Nicholas A. Soivilien, Esq.
Edwards Wildman Palmer LLP
111 Huntington Ave.
Boston, MA 02199
/s/Randall E. Kromm
RANDALL E. KROMM
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Appeal No. 12-1236
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________
IN RE: REQUEST FROM THE UNITED KINGDOM PURSUANT TO THE
TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES OF
AMERICA AND THE GOVERNMENT OF THE UNITED KINGDOM ON
MUTUAL ASSISTANCE IN CRIMINAL MATTERS IN THE MATTER OF
DOLOURS PRICE
UNITED STATES OF AMERICA,
Petitioner-Appellee
v.
TRUSTEES OF BOSTON COLLEGE, ET AL.,
Movants-Appellants
___________________
Addendum Table of Contents
1. In re: Request from the United Kingdom Pursuant to the
Treaty Between the Government of the United States of
America and the Government of the United Kingdom on
Mutual Assistance in Criminal Matters in the Matter of
Dolours Price, Nos. 11-2511, 12-1159
slip op. (1 Cir. July 6, 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . G.Add.1st
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United States Court of AppealsFor the First Circuit
No. 11-2511
IN RE: REQUEST FROM THE UNITED KINGDOM PURSUANT TO THE TREATY
BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE
GOVERNMENT OF THE UNITED KINGDOM ON MUTUAL ASSISTANCE IN CRIMINAL
MATTERS IN THE MATTER OF DOLOURS PRICE
UNITED STATES,
Petitioner, Appellee,
v.
ED MOLONEY; ANTHONY McINTYRE,
Movants, Appellants.
No. 12-1159
ED MOLONEY; ANTHONY McINTYRE,
Plaintiffs, Appellants,
v.
ERIC H. HOLDER, JR., Attorney General;
JACK W. PIROZZOLO, Commissioner,
Defendants, Appellees.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Boudin, Circuit Judges.
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Eamonn Dornan, with whom Dornan & Associates PLLC and James J.
Cotter III were on brief, for appellants.
Barbara Healy Smith, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, and John T. McNeil,
Assistant United States Attorney, were on brief, for appellee.
July 6, 2012
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LYNCH, Chief Judge. These consolidated appeals are from
the denial, in two cases, of the efforts of two academic
researchers to prevent the execution of two sets of subpoenas
issued in May and August of 2011. The subpoenas were issued to
Boston College ("BC") by a commissioner appointed pursuant to 18
U.S.C. 3512 and the "US-UK MLAT," the mutual legal assistance
treaty between the United States and the United Kingdom. The
subpoenas are part of an investigation by United Kingdom
authorities into the 1972 abduction and death of Jean McConville,
who was thought to have acted as an informer for the British
authorities on the activities of republicans in Northern Ireland.
This appears to be the first court of appeals decision to deal with
an MLAT and 3512.
The May 2011 subpoenas sought oral history recordings and
associated documentation from interviews BC researchers had
conducted with two former members of the Irish Republican Army
("IRA"): Dolours Price and Brendan Hughes. BC turned over the
Hughes materials because he had died and so he had no
confidentiality interests at stake. BC moved to quash or modify
the Price subpoenas. The second set of subpoenas issued in August
2011 sought any information related to the death or abduction of
McConville contained in any of the other interview materials held
by BC. BC moved to quash these subpoenas as well.
-3-
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The district court denied both motions to quash. In re:
Request from the U.K., 831 F. Supp. 2d 435 (D. Mass. 2011). And
after undertaking in camera review of the subpoenaed materials it
ordered production. Order, In re: Request from the U.K., No. 11-
91078 (D. Mass. Dec. 27, 2011), ECF No. 38 (ordering production of
Price interviews pursuant to May subpoenas); Findings and Order, In
re: Request from the U.K., No. 11-91078, 2012 WL 194432 (D. Mass.
Jan. 20, 2012) (ordering production of other interviews pursuant to
August subpoenas). BC has appealed the order regarding the August
subpoenas, but that appeal is not before this panel. BC chose not
to appeal the order regarding the Price materials sought by the May
subpoenas.
The appellants here, Ed Moloney and Anthony McIntyre, who
unsuccessfully sought to intervene in BC's case on both sets of
subpoenas, pursue in the first appeal a challenge to the district
court's denial of their motions to intervene as of right and for
permissive intervention. Their intervention complaint largely
repeated the claims made by BC and sought declarations that the
Attorney General's compliance with the United Kingdom's request
violates the US-UK MLAT and injunctive relief or mandamus
compelling him to comply with the terms of that treaty. The effect
of the relief sought would be to impede the execution of the
subpoenas.
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Having lost on intervention, Moloney and McIntyre then
filed their own original complaint, essentially making the same
claims as made in this intervenor complaint. The district court
dismissed the complaint, stating that even assuming the two had
standing, the reasons it gave in its reported decision for denial
of BC's arguments and denial of intervention applied to dismissal
of the complaint. See Order of Dismissal, Moloney v. Holder, No.
11-12331 (D. Mass. Jan. 25, 2012), ECF No. 15; Tr. of Mot. Hr'g,
Moloney v. Holder, No. 11-12331 (D. Mass. Jan. 24, 2012), ECF No.
18. Appellants freely admit that their complaint "essentially set
forth the same claim" as their complaint in intervention. In the
second appeal they challenge the dismissal of their separate civil
complaint for lack of subject matter jurisdiction and for failure
to state a claim.
I.
The factual background for these suits is not disputed.
A. The Belfast Project at Boston College
The Belfast Project ("the Project") began in 2001 under
the sponsorship of BC. An oral history project, its goal was to
document in taped interviews the recollections of members of the
Provisional Irish Republican Army, the Provisional Sinn Fein, the
Ulster Volunteer Force, and other paramilitary and political
organizations involved in the "Troubles" in Northern Ireland from
1969 forward. The purpose was to gather and preserve the stories
-5-
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of individual participants and provide insight into those who
become personally engaged in violent conflict. The Project is
housed at the John J. Burns Library of Rare Books and Special
Collections at BC.
The Project was first proposed by appellant Ed Moloney,
a journalist and writer. He later contracted with BC to become the
Project's director. Before the Project started, Robert K. O'Neill,
the Director of the Burns Library, informed Moloney that, although
he had not yet conferred with counsel on the point, he could not
guarantee that BC "would be in a position to refuse to turn over
documents [from the Project] on a court order without being held in
contempt."
Against this background, the Project attempted to guard
against unauthorized disclosure. The agreement between Moloney and
BC directed him as Project Director to require interviewers and
interviewees to sign a confidentiality agreement forbidding them
from disclosing the existence or scope of the Project without the
permission of BC. The agreement also required the use of a coding
system to maintain the anonymity of interviewees and provided that
only the Burns Librarian and Moloney would have access to the key
identifying the interviewees. Although the interviews were
originally going to be stored in Belfast, Northern Ireland, as well
as Boston, the Project leadership ultimately decided that the
interviews could only be safely stored in the United States. They
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were eventually stored in the "Treasure Room" of the Burns Library,
with extremely limited access.
The agreement between Moloney and BC requires that
"[e]ach interviewee is to be given a contract guaranteeing to the
extent American law allows the conditions of the interview and the
conditions of its deposit at the Burns Library, including terms of
an embargo period if it becomes necessary" (emphasis added). The
agreement, in this clause, expressly acknowledged that its
protections could be limited by American law. The agreement also
directs that the Project adopt an "appropriate user model, such as
Columbia University's Oral History Research Office Guidelines
statement."1
The Project employed researchers to interview former
members of the Irish Republican Army and the Ulster Volunteer
Force. Appellant Anthony McIntyre, himself a former IRA member,
was one of those researchers. McIntyre worked for the Project
under a contract governed by the terms of the agreement between
Moloney and BC. McIntyre's contract required him to transcribe and
index the interviews he conducted and to abide by the
confidentiality requirements of the Moloney agreement. McIntyre
conducted a total of twenty-six interviews of persons associated
1 As the district court noted in its opinion, researchers for
Columbia University's oral history projects apparently advise
interviewees that whatever they say is subject to release under
court orders and subpoenas. See In re: Request from the U.K., 831
F. Supp. 2d 435, 441 n.4 (D. Mass. 2011).
-7-
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with the republican side of the conflict for the Project by the
time it ended in 2006. In addition, the Project contains
interviews with fourteen members of Protestant paramilitary groups
and one member of law enforcement. There are a total of forty-one
interview series (each series may contain multiple interviews with
a single person).
Interviewees entered into donation agreements with BC,
which were signed by the interviewees and by O'Neill, the Burns
Librarian. The donation agreements transfer possession of the
interview recordings and transcripts to BC and assign to the school
"absolute title" to the materials, "including whatever copyright"
the interviewee may own in their contents. The donation agreements
have the following clause regarding access to the interview
materials:
Access to the tapes and transcripts shall be
restricted until after my death except in
those cases where I have provided prior
written approval for their use following
consultation with the Burns Librarian, Boston
College. Due to the sensitivity of content,
the ultimate power of release shall rest with
me. After my death the Burns Librarian of
Boston College may exercise such power
exclusively.
This clause does not contain the term "confidentiality" and
provides only that access will be restricted. But it does recite
that the ultimate power of release belongs to the donor during the
donor's lifetime. The donation agreements do not contain the "to
the extent American law allows" language that is contained in the
-8-
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agreement between Moloney and BC. A copy of the donation agreement
for Brendan Hughes, but not one for Dolours Price, is in the
record, but we assume both signed one.2
In 2010 Moloney published a book and released a
documentary, both entitled "Voices from the Grave, Two Men's War in
Ireland," based on Belfast Project interviews with Hughes and with
David Ervine, a former member of the Ulster Volunteer Force.3 In
addition, news reports in Northern Ireland revealed that Price had
been interviewed by academics at a Boston-area university and that
she had admitted to being involved in the murder and
"disappearances" of four persons targeted by the IRA, including
Jean McConville.
B. The US-UK MLAT Subpoenas
On March 30, 2011, the United States submitted an
application to the district court ex parte and under seal pursuant
to the US-UK MLAT and 18 U.S.C. 3512, seeking the appointment of
an Assistant United States Attorney as commissioner to collect
2 An affidavit from McIntyre, who interviewed Price, states
that Price did sign a donation agreement, which McIntyre states
that he witnessed and also signed, and that he sent the donation
form to BC. The affidavit from O'Neill, the Burns Librarian,
states that a search of the Project's archives for Price's executed
donation agreement failed to locate it, but that there is no reasonto doubt that Price did in fact execute a donation agreement just
like the one executed by Hughes.
3 At the time the book was published, both Hughes and Ervine
had died, so under the terms of their donation agreements their
interviews could be released to the public.
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evidence from witnesses and to take such other action as necessary
to effectuate a request from law enforcement authorities in the
United Kingdom. That application remains under seal. The
application resulted from a formal request made by the United
Kingdom, pursuant to the US-UK MLAT, for legal assistance in a
pending criminal investigation in that country involving the 1972
murder and kidnapping of Jean McConville. The district court
granted the government's application on March 31, 2011, and entered
a sealed order granting the requested appointment.
The commissioner issued two sets of subpoenas for Belfast
Project materials. The first set of subpoenas were received by BC
on May 5, 2011, and were directed to the Trustees of Boston
College; Robert K. O'Neill, Director of the Burns Library; and
Thomas E. Hachey, Professor of History and Executive Director of
the Center for Irish Studies at BC. The subpoenas were issued for
the purpose of assisting the United Kingdom "regarding an alleged
violation of the laws of the United Kingdom," namely, murder,
conspiracy to murder, incitement to murder, aggravated burglary,
false imprisonment, kidnapping, and causing grievous bodily harm
with intent to cause such harm. The subpoenas did not state the
identity of the victim or victims of these crimes, and sought
recordings, written documents, written notes, and computer records
of interviews made with Brendan Hughes and Dolours Price, to be
produced on May 26, 2011.
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BC produced responsive materials related to Hughes; the
conditions of his donation agreement pertaining to the release of
his interviews had terminated with his death. The time to produce
the Price materials was extended by agreement with the U.S.
Attorney's Office until June 2, 2011.
The second set of subpoenas were received by counsel for
BC on August 4, 2011. The August subpoenas sought recordings of
"any and all interviews containing information about the abduction
and death of Mrs. Jean McConville," along with related transcripts,
records, and other materials. The August subpoenas were directed
at the 176 interviews with the remaining 24 republican-associated
interviewees who were part of the Project. These subpoenas
directed production no later than August 17, 2011.
C. The Litigation Initiated by BC
On June 7, 2011, BC moved to quash the May subpoenas. In
the alternative, BC requested that the court allow representatives
from BC access to the documents that describe the purposes of the
investigation to enable BC to specify with more particularity in
what ways the subpoenas were overbroad or that the court conduct
such a review in camera. The government opposed the motion. After
receiving the August subpoenas, BC filed a new motion to quash
addressed to both sets of subpoenas, which the government also
opposed.
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On August 31, 2011, appellants Moloney and McIntyre filed
a motion to intervene as of right and for permissive intervention,
see Fed. R. Civ. P. 24, along with their intervention complaint.
That pleading tracked the arguments made in BC's motion to quash
and also alleged that the Attorney General's compliance with the
United Kingdom's request violated the US-UK MLAT and that
enforcement of the subpoenas would violate Moloney and McIntyre's
First and Fifth Amendment rights. Moloney and McIntyre sought
declarations that the Attorney General was in violation of the
US-UK MLAT and injunctive relief or mandamus compelling him to
comply with the terms of that treaty, the effect of which would be
to impede the execution of the subpoenas. The government opposed
the motions to intervene.
On December 16, 2011, the district court issued an
opinion denying BC's motions to quash the May and August subpoenas
for the reasons stated in its opinion. In re: Request from the
U.K., 831 F. Supp. 2d at 459. As to BC's alternative request, the
court ordered BC to produce materials responsive to the two sets of
subpoenas for the court to review in camera.4 Id.
4 During a hearing held on December 22, 2011, the court
explained that it would engage in a two-part analysis, first
determining whether the produced materials fell within the scope of
the subpoenas, and second engaging in a balancing test. See Tr. of
Conf., In re: Request from the U.K., No. 11-91078 (D. Mass. Dec.
22, 2011), ECF No. 35.
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The district court also denied Moloney and McIntyre's
motion to intervene as of right and their motion for permissive
intervention. Id. The court stated that no federal statute gave
Moloney and McIntyre an unconditional right to intervene under Rule
24(a)(1), "and the US-UK MLAT prohibits them from challenging the
Attorney General's decisions to pursue the MLAT request."5 Id. at
458. The district court "conclude[d] that Boston College
adequately represents any potential interests claimed by the
Intervenors. Boston College has already argued ably in favor of
protecting Moloney, McIntyre and the interviewees." Id. The court
did not separately analyze permissive intervention. Moloney and
McIntyre timely appealed the denial of their motion to intervene on
December 29, 2011.
Having reviewed in camera the interviews of Dolours Price
sought by the May subpoenas, the district court on December 27,
2011 ordered that the May subpoenas be enforced according to their
terms. See Order, In re: Request from the U.K., No. 11-91078 (D.
Mass. Dec. 27, 2011), ECF No. 38. BC and the other recipients of
the May subpoenas did not appeal this order.6
5 The district court also mentioned but did not analyze the
rule that "[a]n interest that is too contingent or speculative
. . . cannot furnish a basis for intervention as of right." In re:Request from the U.K., 831 F. Supp. 2d at 458 (quoting Ungar v.
Arafat, 634 F.3d 46, 50-51 (1st Cir. 2011)) (internal quotation
marks omitted).
6 On December 30, 2011, this court granted Moloney and
McIntyre's motion to stay the portion of the district court's order
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Having been denied intervention, Moloney and McIntyre
filed a separate civil complaint in the district court on December
29, 2011. The same legal theories were stated in this complaint as
had been in the intervention complaint. The government moved to
dismiss plaintiffs' separate complaint for lack of subject matter
jurisdiction under Rule 12(b)(1) and for failure to state a claim
under Rule 12(b)(6).
The district court held a hearing on the motion to
dismiss on January 24, 2012, and dismissed the case from the bench.
See Tr. of Mot. Hr'g at 11, Moloney v. Holder, No. 11-12331 (D.
Mass. Jan. 24, 2012), ECF No. 18. The district court "rule[d] that
neither Mr. McIntyre nor Mr. Moloney under the Mutual Legal
Assistance Treaty and its adoption by the [S]enate and the treaty
materials has standing to bring this particular claim." Id. The
district court also stated:
Beyond that, on the merits, I am satisfied
that the Attorney General as [a] matter of law
has acted appropriately with respect to the
steps he has taken under this treaty, and I
can conceive of no different result applying
the heightened scrutiny that I think is
appropriate for these materials were this case
to go forward on the merits.7
of December 27, 2011 permitting the government to turn over the
Price interview materials to the United Kingdom, pending theresolution of this appeal.
7 It is evident from the transcript of the hearing that the
district court considered Moloney and McIntyre's constitutional
claims as being the same as those raised by BC's motions to quash
and that the court dismissed Moloney and McIntyre's claims for the
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Id. Moloney and McIntyre timely appealed the dismissal of their
complaint on January 29, 2012.
As to BC's motion to quash the August subpoenas, on
January 20, 2012, the district court ordered BC to produce to the
government the full series of interviews and transcripts of five
interviewees and two specific interviews (but not the full
interview series) with two additional interviewees, along with
transcripts and related records.8 See Findings and Order, In re:
Request from the U.K., No. 11-91078, 2012 WL 194432 (D. Mass. Jan.
20, 2012). The court determined that the remaining interviews were
not within the subpoenas' scope.9 BC has appealed this order, and
that appeal is not before this panel. See Appeal No. 12-1236.
The American Civil Liberties Union of Massachusetts
(ACLUM) has filed an amicus curiae brief in support of appellants
Moloney and McIntyre.10
same reasons that it denied BC's motions. Tr. of Mot. Hr'g at 8-
11, Moloney v. Holder, No. 11-12331 (D. Mass. Jan. 24, 2012), ECF
No. 18.
8 The court made production contingent on the lifting of the
stay entered by this court on December 30, 2011.
9 No party raises on appeal any question whether the district
court had discretion to review the materials to determine whether
they fell within the scope of the subpoenas or acted within anydiscretion it had.
10 The brief states three interests: support of the First
Amendment claim, expression of concern about disclosure of
confidential information held by others, and an expression of
concern about the government's interpretation of the US-UK MLAT.
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II.
Dismissal of the Civil Complaint's Claims Under the US-UK MLAT
and 18 U.S.C. 3512
We review de novo the dismissal of the appellants'
complaint. See Abdel-Aleem v. OPK Biotech LLC, 665 F.3d 38, 41
(1st Cir. 2012) (dismissal for lack of subject matter jurisdiction
reviewed de novo); Feliciano-Hernndez v. Pereira-Castillo, 663
F.3d 527, 532 (1st Cir. 2011) (dismissal for failure to state a
claim reviewed de novo), cert. denied, 80 U.S.L.W. 3676 (U.S. June
11, 2012). We "accept[] as true all well-pleaded facts, analyz[e]
those facts in the light most hospitable to the plaintiff's theory,
and draw[] all reasonable inferences for the plaintiff." New York
v. Amgen Inc., 652 F.3d 103, 109 (1st Cir. 2011) (quoting United
States ex rel. Hutcheson v. Blackstone Med., Inc., 647 F.3d 377,
383 (1st Cir. 2011)), cert. dismissed, 132 S. Ct. 993. We are not
bound by the district court's reasoning but "may affirm an order of
dismissal on any basis made apparent from the record." Cook v.
Gates, 528 F.3d 42, 48 (1st Cir. 2008) (quoting McCloskey v.
Mueller, 446 F.3d 262, 266 (1st Cir. 2006)).
Moloney and McIntyre essentially make several arguments
of statutory error and one constitutional claim. They argue that
(1) they state a claim under the US-UK MLAT and 18 U.S.C. 3512;
in any event, (2) they have a claim under the Administrative
Procedure Act, 5 U.S.C. 702, and 28 U.S.C. 1331; and that,
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regardless, (3) the district court had residual discretion which it
abused in not quashing the subpoenas. They also argue that their
claim under the First Amendment of the U.S. Constitution, brought
under federal question jurisdiction, 28 U.S.C. 1331, was
improperly dismissed, an argument we address in part III.
Moloney and McIntyre contend they may bring suit on the
claims that the Attorney General failed to fulfill his obligations
under the US-UK MLAT and that they have a private right of action
to seek a writ of mandamus compelling him to comply with the treaty
or to seek a declaration from a federal court that he has not
complied with the treaty.11
The appellants' claims under the US-UK MLAT fail because
appellants are not able to state a claim that they have private
rights that arise under the treaty, and because a federal court has
no subject matter jurisdiction to entertain a claim for judicial
review of the Attorney General's actions pursuant to the treaty.
11 Appellants assert that the Attorney General's actions
violate the US-UK MLAT because it was not reasonable to believe
that a prosecution would take place in the underlying case; he
failed to take into account certain "essential interests" and"public policy" in deciding whether to comply with a request under
the treaty; the crimes under investigation by the United Kingdom
were "of a political character;" and he did not consider the
implications for the peace process in Northern Ireland of complying
with the United Kingdom's request. The federal courts may not
review this decision by the Attorney General.
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A. Explanation of the Treaty and Statutory Scheme
The United States has entered into a number of mutual
legal assistance treaties ("MLATs") which typically provide for
bilateral, mutual assistance in the gathering of legal evidence for
use by the requesting state in criminal investigations and
proceedings. A description of the history and evolution of such
MLATs may be found in the Ninth Circuit's decision in In re 840
140th Ave. NE, 634 F.3d 557, 563-64 (9th Cir. 2011).
The MLAT between the United States and the United Kingdom
was signed on January 6, 1994, and entered into force on December
2, 1996. See Treaty Between the Government of the United States
and the Government of the United Kingdom of Great Britain and
Northern Ireland on Mutual Legal Assistance in Criminal Matters,
U.S.-U.K., Dec. 2, 1996, S. Treaty Doc. No. 104-2. In 2003, the
United States signed a mutual legal assistance treaty with the
European Union ("US-EU MLAT") that made additions and amendments to
the US-UK MLAT; the latter is in turn included as an annex to the
US-EU MLAT. See Agreement on Mutual Legal Assistance Between the
United States of America and the European Union, U.S.-E.U., June
25, 2003, S. Treaty Doc. No. 109-13. Both MLATs are self-executing
treaties. S. Treaty Doc. No. 109-13, at vii ("The U.S.-EU Mutual
Legal Assistance Agreement and bilateral instruments [including the
annexed US-UK MLAT] are regarded as self-executing treaties under
U.S. law . . . .").
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Article 1 of the US-UK MLAT provides that the parties to
the agreement shall assist one another in taking testimony of
persons; providing documents, records, and evidence; serving
documents; locating or identifying persons; transferring persons in
custody for testimony or other purposes; executing requests for
searches and seizures; identifying, tracing, freezing, seizing, and
forfeiting the proceeds and instrumentalities of crime; and
providing other assistance the parties' representatives may agree
upon. See US-UK MLAT, art. 1, 2.
Importantly, article 1 further states: "This treaty is
intended solely for mutual legal assistance between the Parties.
The provisions of this Treaty shall not give rise to a right on the
part of any private person to obtain, suppress, or exclude any
evidence, or to impede the execution of a request." US-UK MLAT,
art. 1, 3. This treaty expressly prohibits the creation of
private rights of action.
Article 2 concerns Central Authorities: each party's
representative responsible for making and receiving requests under
the US-UK MLAT. US-UK MLAT, art. 2, 3. The treaty states that
the Central Authority for the United States is "the Attorney
General or a person or agency designated by him." US-UK MLAT,
art. 2, 2.
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Article 3 sets forth certain conditions under which the
Central Authority of the Requested Party may refuse assistance.12
Before the Central Authority of a Requested Party denies assistance
for any of the listed reasons, the treaty states that he or she
"shall consult with the Central Authority of the Requesting Party
to consider whether assistance can be given subject to such
conditions as it deems necessary." US-UK MLAT, art. 3, 2.
12 Article 3, paragraph one states that
[t]he Central Authority of the Requested Party
may refuse assistance if:
(a) the Requested Party is of the opinion that
the request, if granted, would impair its
sovereignty, security, or other essential
interests or would be contrary to important
public policy;
(b) the request relates to an offender who, ifproceeded against in the Requested Party for
the offense for which assistance is requested,
would be entitled to be discharged on the
grounds of previous acquittal or conviction;
or
(c) the request relates to an offense that is
regarded by the Requested Party as:
(i) an offense of a political character;
or
(ii) an offense under military law of the
Requested Party which is not also an
offense under the ordinary civilian law
of the Requested Party.
US-UK MLAT, art. 3, 1.
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In article 18, entitled "Consultation," the treaty states
that
[t]he Parties, or Central Authorities, shall
consult promptly, at the request of either,
concerning the implementation of this Treatyeither generally or in relation to a
particular case. Such consultation may in
particular take place if . . . either Party
has rights or obligations under another
bilateral or multilateral agreement relating
to the subject matter of this Treaty.
US-UK MLAT, art. 18, 1.
The requests from the United Kingdom in this case were
executed under 18 U.S.C. 3512, which was enacted as part of the
Foreign Evidence Request Efficiency Act of 2009, Pub. L. No.
111-79, 123 Stat. 2086. When the US-UK MLAT was entered into,
requests for assistance were to be executed under a different
statute, 28 U.S.C. 1782. See S. Exec. Rep. No. 104-23, at 13
(1996) (report of the Senate Committee on Foreign Relations
accompanying the US-UK MLAT). Among other differences, 3512
provides for a more streamlined process than under 1782 for
executing requests from foreign governments related to the
prosecution of criminal offenses.13 Enforcement of similar MLATs
13 Section 1782 effectively requires the Attorney General as
Central Authority to respond to requests for evidence from foreign
governments by filing requests with the district court in everydistrict in which evidence or a witness may be found. See 155
Cong. Rec. S6810 (daily ed. June 18, 2009) (letter from Acting
Assistant Att'y Gen. Burton to Sen. Whitehouse). In practice this
requires involving multiple U.S. Attorneys' Offices and district
courts in a single case. Id. Section 3512, on the other hand,
permits a single Assistant United States Attorney to pursue
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under the provisions of 1782 was the subject of consideration in
In re 840 140th Ave. NE, 634 F.3d 557 (9th Cir. 2011); In re
Commissioner's Subpoenas, 325 F.3d 1287 (11th Cir. 2003), abrogated
in part by Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S.
241 (2004); and In re Erato, 2 F.3d 11 (2d Cir. 1993).
B. Appellants Have No Enforceable Rights Derived from the
US-UK MLAT
Interpretation of the treaty takes place against "the
background presumption . . . that '[i]nternational agreements, even
those directly benefitting private persons, generally do not create
rights or provide for a private cause of action in domestic
courts.'" Medelln v. Texas, 128 S. Ct. 1346, 1357 n.3 (2008)
(alteration in original) (quoting 2 Restatement (Third) of Foreign
Relations Law of the United States 907 cmt. a, at 395 (1986)).
The First Circuit and other courts of appeals have held that
"treaties do not generally create rights that are privately
enforceable in the federal courts." United States v. Li, 206 F.3d
56, 60 (1st Cir. 2000) (en banc); see also Mora v. New York, 524
F.3d 183, 201 & n.25 (2d Cir. 2008) (collecting cases from ten
circuits holding that there is a presumption that treaties do not
create privately enforceable rights in the absence of express
requests in multiple judicial districts, see 18 U.S.C.
3512(a)(1); 155 Cong. Rec. S6809 (daily ed. June 18, 2009)
(statement of Sen. Whitehouse), and allows individual district
court judges to oversee and approve subpoenas and other orders (but
not search warrants) in districts other than their own, see 18
U.S.C. 3512(f).
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language to the contrary). Express language in a treaty creating
private rights can overcome this presumption. See Mora, 524 F.3d
at 188.
The US-UK MLAT contains no express language creating
private rights. To the contrary, the treaty expressly states that
it does not give rise to any private rights. Article 1, paragraph
3 of the treaty states, in full: "This treaty is intended solely
for mutual legal assistance between the Parties. The provisions of
this Treaty shall not give rise to a right on the part of any
private person to obtain, suppress, or exclude any evidence, or to
impede the execution of a request." US-UK MLAT, art. 1, 3. The
language of the treaty is clear: a "private person," such as
Moloney or McIntyre here, does not have any right under the treaty
to "suppress . . . any evidence, or to impede the execution of a
request."
If there were any doubt, and there is none, the report of
the Senate Committee on Foreign Relations that accompanied the
US-UK MLAT confirms