First Circuit Ruling on US Attorney Petition for Rehearing: Denied

United States Court of Appeals
For the First Circuit
No. 12-1236
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.
TRUSTEES OF BOSTON COLLEGE
Movant – Appellant
____________________________

Before
Torruella, Boudin* and Thompson,
Circuit Judges.

ORDER OF COURT
Entered: September 5, 2013

Appellee’s Petition for Rehearing is denied.

By the Court:
/s/ Margaret Carter, Clerk

cc:
Jeffrey Swope, James Cotter, III, Eamonn Dornan, Dina Chaitowitz, Randall Kromm, John McNeil

____________________________

*Judge Boudin did not participate in the consideration of this matter.

Case: 12-1236 Document: 00116578535 Page: 1 Date Filed: 09/05/2013 Entry ID: 5761299

Opposition of Boston College to Government’s Petition for Panel Rehearing

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________________________________________________________________
No. 12-1236
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.
TRUSTEES OF BOSTON COLLEGE, ET AL.,
Movants – Appellants.

__________________________________________________________________
OPPOSITION OF BOSTON COLLEGE TO
GOVERNMENT’S PETITION FOR PANEL REHEARING
__________________________________________________________________

 

Appellants Trustees of Boston College and two of its representatives, Robert K. O’Neill, the Librarian of the John J. Burns Library at Boston College, and Boston College University Professor Thomas E. Hachey (collectively, “Boston College”), oppose the government’s Petition for Panel Rehearing, which the government styles as a request that this court modify its May 31, 2013 opinion in this appeal. By order dated August 8, 2013, this court directed Boston College to file this response….

Government’s Motion to Extend the Time To File a Petition for Rehearing


UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 12-1236
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,
Movant, Appellant.

GOVERNMENT’S MOTION TO EXTEND THE TIME
– TO JULY 30, 2013 –
WITHIN WHICH TO FILE A PETITION FOR REHEARING
AND/OR REHEARING EN BANC

The United States of America respectfully moves this Court to extend the time in which it must file any petition for rehearing and/or petition for rehearing en banc to July 30, 2013. In support of this request, the undersigned Assistant U.S. Attorney states the following:

1. This was the movant’s appeal from the district court’s orders directing the production of documents pursuant to government subpoenas.

2. On May 31, 2013, the Court affirmed the orders in part and reversed them in part.

3. Pursuant to FRAP 35 and 40, any petition for panel rehearing or petition for rehearing en banc is required to be filed within 14 days.

3. The government must obtain approval from the Solicitor General to seek or not to seek en banc rehearing. Additional time is needed for this decision to be made, and for the government to prepare any petition.

4. Accordingly, the government requests that this Court extend the time within which it must file any petition for panel rehearing and/or petition for rehearing en banc to July 30, 2013.

For these reasons, the government respectfully requests that the Court allow this motion.

Respectfully submitted,
CARMEN M. ORTIZ
United States Attorney
By: /s/ Randall E. Kromm
RANDALL E. KROMM
Assistant U.S. Attorney

Motion to Defer Consideration of Petition for Writ of Certiorari

IN THE SUPREME COURT OF THE UNITED STATES
No. 12-627
ED MOLONEY AND ANTHONY MCINTYRE,
V.
UNITED STATES OF AMERICA, ET AL.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

MOTION TO DEFER CONSIDERATION OF PETITION FOR WRIT OF CERTIORARI

EAMONN DORNAN COUNSEL OF RECORD
JAMES J. COTTER III
JONATHAN M. ALBANO
Counsel for Applicants Ed Moloney and Anthony McIntyre

Petitioners Ed Moloney and Anthony McIntyre respectfully move that the Court defer consideration of their petition for a writ of certiorari pending a ruling by the First Circuit Court of Appeals in the related case of In re Request of 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, First Circuit No. 12-1236 (“United Kingdom II”). The grounds for Petitioners’ request are as follows:

1. This petition arises out of a Court of Appeals decision enforcing subpoenas issued on behalf of the Police Service of Northern Ireland (“PSNI”) pursuant to the Mutual Legal Assistance Treaty between the United States and the United Kingdom (“US-UK MLAT”) and 18 § 3512. See In re Request from United Kingdom Pursuant to Treaty Between Government of US. and Government of United Kingdom on Mutual Assistance in Criminal Matters in the Matter of Dolours Price, 685 F.3d 1 (1st Cir. 2012) (United Kingdom I).

2. The subpoenas at issue in United Kingdom I sought confidential records of interviews conducted by Petitioners with Dolours Price, a former IRA member.

3. As the petition explained, a separate set of subpoenas later issued on behalf of the PSNI sought confidential records of interviews conducted by Petitioners of certain former IRA members other than Ms. Price. The second set of subpoenas are the subject of United Kingdom II, a separate appeal (cited above) argued before the First Circuit Court of Appeals on September 7, 2012, and which has not yet been decided by that court,

4. Petitioners recently advised the Court and the government of the death of Ms. Price. Under the terms of their confidentiality agreement, the Petitioners’ confidentiality obligations to Ms. Price expired upon her death. The case is not moot, however, because the Petitioners also were denied the right to intervene or be heard in opposition to the second set of subpoenas at issue in United Kingdom II, subpoenas which seek interview materials concerning individuals other than Ms. Price. See also Opposition at 3 n.1 (conceding that Petitioners’ challenges to the second set of subpoenas are not moot).

5. Although the Court of Appeals’ decision in United Kingdom II will not likely address the Petitioners’ right to be heard in opposition to either set of subpoenas, a ruling that the second set of subpoenas are not enforceable could moot the petition by granting substantially or all of the relief on the merits sought the Petitioners with respect to the enforceability of the subpoenas. See, e.g., Zzpes v. Trans World Airlines, Inc., 442 U.S. 916 (1979) (granting motion to defer petition); see generally E. Gressman, K. Geller, S. Shapiro, T. Bishop, & E. Hartnett, Supreme Court Practice 339 (9th ed.2007) (petitions sometimes deferred “until some event takes place that will aid or control the determination of the matter”).

6. Under these circumstances, Petitioners submit that it is in the interests of justice and judicial economy to defer ruling on the petition until such time as the Court of Appeals decides whether the second set of subpoenas are enforceable. Petitioners also request leave to file their Reply to the government’s opposition within 30 days of the Court of Appeals’ decision in order to address the effect of that ruling.

CONCLUSION

WHEREFORE, Petitioners pray that the Court (1) defer the petition pending a ruling by the First Circuit Court of Appeals in United Kingdom II; and (2) grant Petitioners leave to file their reply to the government’s opposition within 30 days of the First Circuit’s decision.

Respectfully submitted
EAMONN DORNAN Counsel of Record
JAMES J. COTTER, III
JONATHAN M. ALBANO, ROBERT E. MCDONNELL, DEANA K. EL-MALLAWANY, BINGHAM MCCUTCHEN LLP
Counsel for Applicants Ed Moloney and Anthony McIntyre

Dated: March 15, 2013

Boston College Supreme Court case: Brief for the United States in Opposition

No. 12-627
In the Supreme Court of the United States

ED MOLONEY AND ANTHONY MCINTYRE, PETITIONERS
v.
UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

DONALD B. VERRILLI, JR.
Solicitor General
Counsel of Record
MYTHILI RAMAN
Acting Assistant Attorney General
DAVID M. LIEBERMAN
Attorney

Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217


QUESTIONS PRESENTED
1. Whether petitioners had an adequate opportunity to be heard on their First Amendment objections to subpoenas issued in support of a criminal investigation in the United Kingdom, when the lower courts considered and dismissed their claims on the merits.
2. Whether a court deciding whether to quash a law-enforcement subpoena issued pursuant to a mutual legal assistance treaty and 18 U.S.C. 3512 (Supp. V 2011)must consider the same specific discretionary factors applicable to a general foreign discovery request under28 U.S.C. 1782(a)

Reply of Boston College to Government’s Response to Motion to Dismiss Appeal as Moot

UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
___________________________________________________________________________
No. 12-1236

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 KINGDOMON MUTUAL ASSISTANCE IN CRIMINAL MATTERS IN THE MATTER OF DOLOURS PRICE, UNITED STATES,

Petitioner – Appellee
v.
TRUSTEES OF BOSTON COLLEGE, ET AL.,
Movants – Appellants
_________________________________________________________________
REPLY OF BOSTON COLLEGE TO GOVERNMENT’S RESPONSE TO MOTION TO DISMISS APPEAL AS MOOT
__________________________________________________________________

 

On January 28, 2013, Appellants Trustees of Boston College and two of its representatives, Robert K. O’Neill, the Librarian of the John J. Burns Library at Boston College, and Boston College University Professor Thomas E. Hachey (collectively, “Boston College”), notified the Court pursuant to Fed. R. App.P. 43(a)(1) of the death of the Dolours Price. Because the subject of these proceedings, as identified in the caption of this case by the Commissioner who issued subpoenas to Boston College, is Dolours Price, Boston College moved that this Court dismiss this appeal as moot and vacate the District Court’s January 20,2012, Findings and Order that is the subject of this appeal. The Government’s Response asserts two grounds for denial of Boston College’s motion:

  • that the caption of these proceedings does not limit the information sought to evidence to prosecute Dolours Price, and
  • that a specific limitation in the treaty at issue in this appeal (the US-UK MLAT) is not applicable to the subpoenas that are the subject of this appeal. Upon further consideration, Boston College does not contest the Government’s position on the second ground, but does dispute the Government’s position on the first ground, for the following reasons.

ARGUMENT

The August 2011 subpoenas to Boston College that are the subject of this appeal (“the subpoenas”) were issued in proceedings that the Commissioner captioned “in criminal matters in the matter of Dolours Price.” That caption is the only information Boston College has regarding the subject of the pending proceedings: criminal matters that relate to Dolours Price. Based on that information, when Boston College learned of the death of Dolours Price, it filed a suggestion of death pursuant to Fed. R. App. P. 43(a)(1). Because the only person whom the Commissioner identified as the subject of these proceedings was Dolours Price, and there could be no prosecution of her after her death, Boston College moved to vacate the District Court’s order at issue in this appeal and to
dismiss the appeal as moot.

The Government’s Response (at 6-8) incorrectly asserts that Boston College previously took an inconsistent position in this litigation because it did not object based on the fact that the subpoenas asked for “any and all interviews containing information about the abduction and death of Mrs. Jean McConville.”

The Government’s argument on this point fails to acknowledge the difference between the subject of the proceedings (from the caption, Dolours Price) and the scope of materials sought by the subpoenas issued in these proceedings (information about the McConville abduction and death). Boston College does not argue that the death of Dolours Price affects the scope of the materials the
subpoenas seek. Instead, it contends that the death of Dolours Price moots the need for the information sought by the subpoenas.

The Government’s Response also asserts (at 8) that Boston College is mistaken in concluding, based on the caption the Commissioner himself gave these proceedings, that the criminal matters under investigation are limited to Dolours Price. The Government asserts that its ex parte filings identified subjects of the investigation other than Dolours Price. Boston College has no way to verify the accuracy of the Government’s assertion, because it has been barred from access to the materials on which that assertion is based.

Boston College therefore relies on this Court to determine, from the Court’s own examination of the ex parte materials, whether those materials identify one or more other living individuals against whom criminal prosecution would still be possible, so that these proceedings are not in fact mooted by the death of Dolours Price.

Conclusion

Unless this Court can confirm from examination of ex parte filings by the Government that the subject of these proceedings is not just Dolours Price, but also individuals who are still alive and subject to possible criminal prosecution, this Court should vacate the District Court’s January 20, 2012, Findings and Order and dismiss this appeal as moot.

By their attorney,
/s/ Jeffrey Swope
Jeffrey Swope (BBO# 490760)
Nicholas A. Soivilien (BBO #675757)
EDWARDSWILDMAN PALMER LLP
111 Huntington Avenue
Boston, Massachusetts 02199-7613
(617) 239-0100
jswope@edwardswildman.com
Dated: February 20, 2013

Government’s Opposition to Boston College’s Motion to Dismiss

GOVERNMENT’S OPPOSITION TO BOSTON COLLEGE’S MOTION TO DISMISS ITS APPEAL AS MOOT

UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
Appeal No. 12-1236
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

GOVERNMENT’S OPPOSITION TO BOSTON COLLEGE’S MOTION TO DISMISS ITS APPEAL AS MOOT

“On January 28, 2013, Boston College filed a Notice of Suggestion of Death informing the Court of the death of Dolours Price. In the Notice, Boston College stated, without developed argument, that Price’s death required that the district court order appealed from be vacated and the appeal dismissed as moot. That claim is meritless. Price’s death does not undercut the validity of the district court’s order requiring Boston College to provide certain documents to the government in response to subpoenas issued by the United States pursuant to 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 in Criminal Matters (“the US-UK MLAT”). As a result, Boston College’s appeal from that order continues to present a live controversy.”

Relevant Background

In moving to dismiss, Boston College does not dispute the facts set forth in prior filings in this appeal and in this Court’s decision affirming other orders granted in the same matter, In re: Request from the United States 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 (“In re: Request”), 685 F.3d 1 (1 Cir. st 2012), petition for cert. filed, 81 USLW 3336 (Nov. 16, 2012) (12-627). As set forth therein,1 the relevant facts are as
follows.

On March 30, 2011, the United States submitted an application, ex parte and under seal, for the appointment of a Commissioner “to collect evidence from witnesses and to take such other action as necessary to effectuate a request from law enforcement authorities in the United Kingdom.” In re: Request, 685 F.3d at 6. “The application resulted from a formal request made by the United Kingdom . . . for assistance in a pending criminal investigation in that country involving the 1972 murder and kidnapping of Jean McConville.” Id. The district court subsequently entered an order granting the appointment. Id.

The Commissioner issued two sets of subpoenas to Boston College and its personnel pursuant to this appointment seeking interviews collected as part of the so called “Belfast Project.” Id. The first subpoenas sought interviews conducted with Brendan Hughes and Dolours Price. Id. Boston College turned over the Hughes materials but not those of Price. Id. The second set of subpoenas, issued in August 2011, more broadly sought recordings of “any and all interviews containing information about the abduction and death of Mrs. Jean McConville.” Id. at 6-7.

Boston College sought to quash both sets of subpoenas, arguing, among other things, that the Belfast Project materials should be protected as confidential academic research materials, that disclosure of the materials would have a chilling effect on future oral history projects, and that it would expose the interviewers involved in the project to possible retaliation. [Add.8, 34; JA:54-57; see also D.5, 12]. Boston College also requested, in the alternative, that the district court (Young, J.) undertake an in camera review of the documents to determine their responsiveness to the subpoenas. [D.5]. On December 16, 2011, the district court issued a memorandum and order denying Boston College’s motions to quash, but granting the request for in camera review. [Add.48]. Boston College did not appeal from the December 16, 2011 memorandum and order. In re: Request, 685 F.3d at 8.

Although Boston College did not appeal from the denial of its motions to quash, it continued to litigate the question of what documents should be produced in response to the subpoenas. In this litigation, Boston College did not argue, based on the caption of the case or any other ground, that the subpoenas were improper to the extent they sought information other than that implicating Price personally. Boston College argued, instead, that, in light of First Amendment concerns, the district court should screen the documents for relevance to the McConville abduction and murder. [JA:192]. The government, in turn, argued that the subpoenas should be construed broadly and submitted ex parte materials in support of that position. [JA:155; S.App.6-14].

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. [D.38]. On January 20, 2012, the court issued a Findings and Order addressing the August subpoena, ordering the production of the full sets of interviews from five interviewees and individual interviews from two others. [Add.51-55]. Boston College appealed from this order, arguing generally that the district court abused its discretion in ordering the production of documents without requiring that they be “directly relevant” to the McConville abduction. [See Br.39]. Boston College did not argue that the scope of production should be further limited to those documents implicating Price personally in the abduction.

ARGUMENT

I. THE DEATH OF DOLOURS PRICE DOES NOT INVALIDATE THE DISTRICT COURT’S ORDER AND, THUS, DOES NOT MOOT THIS APPEAL.

“An appeal becomes moot if an intervening event strips the parties of any legally cognizable interest in its outcome.” Connectu LLC v Zuckerberg, 522 F.3d 82, 88 (1 Cir. 2008). Where a party moves st to dismiss an appeal on grounds of mootness, “[t]he burden of establishing mootness rests with the party urging dismissal,” and that burden, the Court has emphasized, “is a heavy one.” Id.

In its Notice, Boston College does not advance any developed argument as to why Price’s death renders this appeal moot. Instead, it merely presents a series of brief factual statements accompanied by the conclusory claim that these statements “mean” that Price’s death deprives the government of any right to obtain the documents that are the subject of this appeal. [Notice ¶¶1-5]. Such a skeletal argument would ordinarily be deemed waived, see United States v. Zannino, 895 F.2d 1, 17 (1990) (noting the “settled appellate rule that issues adverted to in a perfunctory manner, unaccompanied by developed argumentation, are deemed waived”), but, because the argument in theory raises a question of this Court’s authority to hear the appeal, a response to the substance of Boston College’s argument is warranted. See Connectu, 522 F.3d at 88 (“Because the inquiry into whether an appeal has become moot implicates a foundational question, sound practice dictates that we give that inquiry priority and conduct it as a threshold matter.”). As explained below, the argument is meritless.

Boston College’s argument for mootness rests on two propositions. First, Boston College contends that the caption assigned to the case in the district court demonstrates that the subpoenas were intended only to obtain information that could be used to prosecute Price herself. [Notice ¶¶1, 5]. Second, Boston College contends that, because Price is dead and cannot be prosecuted, the US-UK MLAT cannot support a request for legal assistance, because it provides that legal assistance is “not . . . available for matters in which the administrative authority anticipates that no
prosecution or referral, as applicable, will take place.” [Notice ¶3]. Both propositions are mistaken.

Boston College’s claim that the case caption shows that the government’s requests only sought evidence against Price personally is at odds with the record and, indeed, with Boston College’s own litigating position in the district court and on appeal. Nothing in the subpoenas themselves supports such a limited reading – the subpoenas that are the subject of this appeal broadly requested materials relating to “any and all interviews containing information about the abduction and death of Mrs. Jean McConville,” which very well might include interviews implicating persons other than Price in McConville’s death. [Add.4]. Nor do the proceedings in the case indicate that the district court or any party believed that the subpoenas or the investigation should be construed so narrowly. To the contrary, statements by the district court and the parties reflect that it was understood that the subpoenas generally sought, at the least, all documents relevant to the investigation of McConville’s death, not merely those that might implicate Price. [See, e.g. JA:143-45 (discussion of process and search terms that could determine what materials related to McConville), 153-55 (same)]. The only area of dispute was to what extent the request extended to materials that did not directly address the McConville murder. [See, e.g., JA:191-92].

This understanding of the scope of information sought is reflected in this Court’s opinion in In re: Request, see 685 F.3d at 3 (noting that the subpoenas were “part of an investigation . . . into the 1972 abduction and death of Jean McConville” and that the second set of subpoenas “sought any information related to the death or abduction of McConville”) (emphasis added), and was not challenged by Boston College in this appeal. [See Br.34 (arguing only that the district court used the “wrong test” in determining what documents should be disclosed in response to subpoenas “seek[ing] information about the abduction or death of Jean McConville”)]. It is also confirmed by the ex parte documents filed by the government in the case, which establish beyond dispute that the request for assistance and the government’s application in the district court were not limited to a search for documents bearing on Price’s personal culpability. [See generally D.2 & Exhibits;
see also S.App.3-4]. Against this backdrop, Boston College’s claim that this Court should infer a narrower scope of the investigation based merely on the district court caption is untenable.

Because the investigation was not limited to seeking materials for the purpose of prosecuting Price, Boston College’s treaty-based argument, which relies on that mistaken premise, cannot succeed. In any event, this argument also fails on the merits, for two reasons. First, the treaty provision on which Boston College relies is not, in fact, implicated in this case. The request in this case was made pursuant to Article 1 of the US-UK MLAT, which, in conjunction with Article 19, provides that “Parties shall provide for mutual legal assistance . . . for the purpose of proceedings”
that include “any measure or step taken in connection with the investigation or prosecution of criminal offenses.” See US-UK MLAT, Arts. 1, 19. Article 1bis expands the obligation to provide assistance under Article 1 to include instances where assistance is requested by a “national administrative authority,” but limits this expanded authority to circumstances where the administrative authority is conducting an investigation “with a view to a criminal prosecution” or a referral to investigation or prosecution authorities. See US-UK MLAT Art.1, §1bis. That provision, and its
limitations, does not apply here. [See D.2, p.1].

Second, as this Court affirmed in In re: Request, the US-UK MLAT by express terms precludes a private party from refusing to comply with a request for production of documents on the ground that the requirements of the treaty have not been followed. See 685 F.3d at 12-13. Thus, even if Price’s death did call into question whether the United States was still required to provide the documents to the UK pursuant to the treaty, which it does not, that would not absolve Boston College of its obligation to provide the documents to the United States and this appeal would remain viable.

In light of the above, Boston College has not met its burden of establishing that the government has no “legally cognizable interest in the outcome” of this appeal. Connectu LLC, 522 F.3d at 88. To the contrary, the government is entitled to enforcement of its subpoenas as provided for in the district court’s order. Thus, unless Boston College wishes to simply comply with that order, the appeal presents a live case or controversy and is not moot.

CONCLUSION

For the foregoing reasons, the government respectfully requests that Boston College’s motion to dismiss its appeal as moot be denied.

Respectfully submitted,
CARMEN M. ORTIZ
United States Attorney
By: /s/ Randall E. Kromm
RANDALL E. KROMM
Assistant U.S. Attorney

1Citations are as follows. The citation “[Notice ¶_]” refers to Boston College’s Notice of Suggestion of Death. The citations “[Br._],” “[Add._],” and “[JA:_]” refer, respectively, to Boston College’s brief, addendum, and joint appendix. The citation “[S.App._]” refers to the ex parte supplemental appendix filed by the government. The citation “[D._]” refers to a docket entry in the district court case.

Boston College moves that the Court vacate the District Court’s January 20, 2012, Findings and Order and dismiss appeal as moot

UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
___________________________________________________________________________
No. 12-1236
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.
TRUSTEES OF BOSTON COLLEGE, ET AL.,
Movants – Appellants
__________________________________________________________________
NOTICE OF BOSTON COLLEGE OF SUGGESTION OF DEATH
__________________________________________________________________

Pursuant to Fed. R. App. P. 43(a)(1), Appellants Trustees of Boston College and two of its representatives, Robert K. O’Neill, the Librarian of the John J. Burns Library at Boston College, and Boston College University Professor Thomas E. Hachey (collectively, “Boston College”), notify the Court of the death of the Dolours Price, the subject of this matter as identified in the caption of the case.

Boston College moves that the Court vacate the District Court’s January 20, 2012, Findings and Order and dismiss this appeal as moot.

1. The Commissioner’s August 2011 subpoenas to Boston College that are the subject of this appeal (“the subpoenas”) captioned the proceedings as “in criminal matters in the matter of Dolours Price.”

2. The subpoenas were issued pursuant to 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 in Criminal Matters (S. Treaty Doc. No. 109-13) (the US-UK MLAT).

3. Article 1, Section 1bis [second] of the US-UK MLAT provides that assistance from the United States under that treaty “shall not be available for matters in which the administrative authority anticipates that no prosecution or referral, as applicable, will take place.”

4. According to news reports, Dolours Price was found dead on January 23, 2013, at her home in Malahide, Northern Ireland.

5. Her death means that criminal matters of Dolours Price can no longer be the subject of any prosecution or referral, and as a result the provisions of the US-UK MLAT pursuant to which the subpoenas were issued are no longer available.

For the reasons stated in this notice, Boston College moves that this Court vacate the District Court’s January 20, 2012, Findings and Order and dismiss this appeal as moot.

By their attorney,
/s/ Jeffrey Swope
Jeffrey Swope (BBO# 490760)
Nicholas A. Soivilien (BBO #675757)
EDWARDSWILDMAN PALMER LLP
111 Huntington Avenue
Boston, Massachusetts 02199-7613
(617) 239-0100
jswope@edwardswildman.com
Dated: January 28, 2013

Moloney & McIntyre: Petition for a Writ of Certiorari in the Supreme Court of the United States

No. 12A310
In the Supreme Court of the United States
_________________________________________________
ED MOLONEY, ANTHONY MCINTYRE,
PETITIONERS
v.
ERIC H. HOLDER, Attorney General;
JACK W. PIROZZOLO, Commissioner,
RESPONDENTS
_________________________________________________
PETITION FOR A WRIT OF CERTIORARI
_____________________________________________