Summary of Judgement, Boston Tapes Application

BOSTON TAPES APPLICATION DISMISSED
Summary of Judgment
Judicial Communications Office
22 October 2018

The Divisional Court today dismissed an application for an injunction by Anthony McIntyre restraining the Director of Public Prosecutions or the PSNI from making any further use of the interview materials obtained from the “Boston Tapes” project.

Background

Anthony McIntyre (“the applicant”) was convicted of membership of a proscribed organisation, the Irish Republican Army, and sentenced on 9 December 1974 to a period of two years’ imprisonment. He was subsequently convicted of one count of murder, three counts of attempted murder, one count of hijacking and one count of possession of a weapon with intent to endanger life. He was sentenced to life imprisonment with a recommended minimum term of 25 years. He appealed in respect of the murder charge and in 1979 the recommended minimum term was reduced to 20 years’ imprisonment.

In 2001 the applicant became involved in an academic oral history project known as the “Belfast Project” with the journalist and author Ed Moloney who was the project director. The project was sponsored by Boston College, Massachusetts, USA. The object of the project was to collect and preserve for academic research the recollections of members of republican and loyalist paramilitary organisations. The methodology was to gather first-hand testimony by way of voice recordings from participants. The project lasted from 2001 until May 2006. It began with interviews of former members of the Provisional IRA and was subsequently expanded to include interviews with former members of the Ulster Volunteer Force. The applicant was a researcher. He interviewed past participants in the conflict recording their personal recollections. Each participant gave the content of the recordings into the possession of Boston College for preservation. Access to the tapes was to be restricted until after the interviewee’s death except where they provided prior written authority for their use otherwise. The applicant maintains that it was always understood that the contents of the interviews might be accessible after death and that it was never envisaged that the contents would be accessed by the Police Service of Northern Ireland (“PSNI”) for the purposes of criminal investigation or prosecution.

In February 2011 mutual legal assistance was sought by the PSNI from the authorities in the USA to obtain tapes held by Boston College relating to interviews conducted with Republican participants touching upon the abduction and death of Jean McConville. This was resisted on the basis of the risks to the well-being of the researchers but the US court concluded that some of the materials should be provided to the UK authorities. In 2012 the applicant instituted proceedings in this jurisdiction seeking to prevent the PSNI from obtaining confidential archive material provided to the Trustees of Boston College Massachusetts USA but that application was dismissed in October 2012.

The applicant gave an interview to the BBC’s Spotlight programme broadcast in May 2014 in which he stated that he had provided an interview on tape to the organisers of the Boston College Project and that he had exposed himself “to exactly the same risks as anybody else was exposed to”. The PSNI interpreted that statement as suggesting that the applicant had disclosed criminal conduct in
his interview on tape. On 3 September 2014 the PSNI requested that the Public Prosecution Service (“PPS”) issue an International Letter of Request (“ILOR”) in respect of a criminal investigation it was carrying out into the following matters:

• A bomb attack on a house at Rugby Avenue on 6 February 1976. The PSNI claimed to have received information on that date the applicant was involved in the bomb attack. The applicant, however, maintains that he was in fact the target of the attack and that in any event if the attack was on the date alleged he was in police custody throughout that day;
• The detection in 1978 in the applicant’s possession of an imitation firearm while in custody in circumstances suggesting that he may be planning an escape from custody. The applicant states that this is a reference to an incomplete wooden gun in two parts which was found in a search cubicle in prison reception. He was questioned at the time of its discovery but not charged with any offence and
• Membership of an illegal organisation. That concerned inter alia intelligence allegedly suggesting that the applicant debriefed members of the Provisional IRA after their release from custody and was an officer of that organisation.

The International Letter of Request (“ILOR”)

The ILOR was issued on 9 February 2015 by the PPS to the Central Authority of the United States of America. The letter described the applicant and indicated that the PSNI was investigating the commission of a number of offences and grounded its investigation on the following information:

“(i) In 1974 the police received information that Anthony McIntyre was a member of the Official Irish Republican Army in the Markets area of Belfast;
(ii) In 1975 Anthony McIntyre was convicted of membership of an illegal organisation- namely the Irish Republican Army – and was sentenced to two years imprisonment:
(iii) In 1975 Anthony McIntyre was convicted of an offence of armed robbery carried out on behalf of the Irish Republican Army, he was sentenced to three years imprisonment,
(iv) In 1975 the police received information that Anthony McIntyre was a member of the Provisional Irish Republican Army,
(v) In 1976 the police received a report that Anthony McIntyre was the leader, or Officer Commanding, the Provisional Irish Republican Army in the Ormeau Road area of Belfast:
(vi) In 1976 the police received information that Anthony McIntyre was involved in a bomb attack on a house in Rugby Avenue, Belfast:
(vii) In 1976 the police received information that Anthony McIntyre was conducting debriefing sessions on behalf of the Provisional Irish Republican Army with persons who had been arrested and questioned by the British Army;
(viii) In 1976 Anthony McIntyre was convicted of the murder of Kenneth Lenaghan in Donegal Pass, Belfast. The PSNI believes that this murder was carried out by the Provisional Irish Republican Army, Anthony McIntyre was sentenced to life imprisonment for this offence; and
(ix) In 1978, in a prison transport vehicle, Anthony McIntyre was found to have a concealed imitation firearm. The PSNI believes this was to have been used in an escape attempt.”

There were a number of errors in the ILOR including reference to the incorrect date of birth of the applicant, the incorrect section of legislation in respect of an offence, an assertion that the applicant had been convicted of armed robbery in 1975 and sentenced to a period of imprisonment of three years when in fact there was no evidence to support that assertion and an incorrect date of conviction for the offence of membership of a proscribed organisation. Although the proceedings in the US were sealed the PPS asked the authorities on 16 June 2016 to unseal certain submissions in order to correct the errors in in advance of the issue by the court of its Order later the same day. The US court carried out an in camera review of the material and ordered that portions of the interviews were to be made available to the PSNI.

Leave

The applicant sought an injunction restraining the DPP or PSNI from taking any further steps in the utilisation of the interview materials. An interim Order to that effect was made by the Divisional Court and leave was granted to pursue grounds raising the following issues:

• The DPP had no reasonable grounds for suspecting that any or all of the specified offences had been committed by the applicant or that any investigation was being carried out in respect of them in advance of the issuance of the ILOR for the applicant’s interview materials;
• The DPP failed to satisfy himself that the doctrines of autrefois acquit and autrefois convict were not applicable to any of the specified offences prior to the issuance of the ILOR;
• The DPP failed to promulgate guidelines or to have regard to other published guidelines relating to the proper approach to be adopted with respect to ILORs;
• The PSNI and DPP had not acted in good faith and there was a breach of the duty of candour by the PPS, particularly in not transmitting to the US Central Authority exculpatory material provided by the applicant;
• The PSNI had acted unreasonably by engineering an investigation into moribund offences or offences which had already progressed to conviction or acquittal for the sole purpose of obtaining the relevant materials.

Consideration

The statutory conditions enabling the PPS to request assistance are: it must appear to the PPS that there are reasonable grounds for suspecting that an offence has been committed; that the offence is being investigated; and that the assistance sought is assistance in obtaining evidence specified in the request for use in the investigation. The Divisional Court accepted that the inference to be drawn from the materials is that there was no active investigation in respect of the applicant’s alleged criminal conduct prior to the Spotlight interview in May 2014. It considered, however, that the evidence presented to the court established that an investigation had been commenced between May and September 2014 and that in light of the intelligence material disclosed to the court the first two conditions were satisfied. There was some criticism of the suggestion that the requested material was likely to be of substantial value. The PPS indicated to the court that it “had no idea what it might contain” but the Divisional Court was satisfied that the evidence indicated that the assistance was sought in connection with the investigation, was judged to be likely to be relevant to the manner in which that investigation was pursued and that it was considered that its receipt would influence the course of the investigation. Accordingly the material sought was for use in the investigation and the third condition was also satisfied.

The Court referred to two recent cases which discuss the further obligations to which a requesting state is subject. The core of the applicant’s complaint in this case was that there had been a breach of the duty of good faith and that a duty of candour had been owed to him which had also been breached. As evidence of the breach of good faith the applicant relied on the errors within the ILOR. The applicant pointed to the secrecy attaching to the process and complained about the reluctance of the respondents to disclose the ILOR until late in the proceedings. The Divisional Court did not accept that the preservation of confidentiality in the course of a criminal investigation is evidence of a breach of the duty of good faith but we are satisfied that the content of the ILOR could and should have been disclosed at an earlier stage in these proceedings. The Court did agree that there was a “disappointing lack of care” in the preparation of the ILOR but it did not accept that evidence of such a lack of care translates into breach of the duty of good faith which applies in such cases:

“The applicant sought to undermine the evidence that an investigation was ongoing and that the PPS had reasonable grounds for requesting the evidence in connection with an investigation into offences committed by the applicant by adducing evidence from him and the householder in Rugby Avenue supporting the identification of the culprits as loyalists. The basis, however, for the investigation of the applicant’s involvement in the bomb attack is intelligence based. The fact that exculpatory evidence was introduced on behalf of the applicant did not diminish the importance of the intelligence led evidence. The submission of the PSNI to the PPS dated 3 September 2014 was clear evidence that an investigation into the applicant’s criminal conduct was ongoing, that it was largely intelligence based, that it concerned offences in connection with the bomb attack at Rugby Avenue in 1976, the circumstances in which the applicant had certain items in his possession while being transported from the prison in 1978 and his alleged membership of the Provisional IRA. We do not accept that the criticisms set out above provide any basis for the conclusion that there was a breach of the duty of good faith. The offences in respect of which the materials were to be used had to be set out comprehensively since any use in respect of other offences was prohibited … unless the requested authority consented to that use.”

The applicant also contended that there was a duty of candour requiring the disclosure to the requested state of any exculpatory material available to the investigators. The Divisional Court, however, did not accept that the respondents were subject to such a duty in respect of disclosure. Section 32 (1)(d) of the Police (Northern Ireland) Act 2000 it is the general duty of the police to take measures to bring the offender to justice where an offence has been committed. In doing so the investigation will often disclose inculpatory and exculpatory material and it is the responsibility of the police to conduct its investigation by reference to all the evidence. Where an ILOR is requested, that may be for an inculpatory or exculpatory purpose. The Divisional Court held that the use to which the material is put is clearly a matter for the police. The duty of good faith applies to the requesting authorities and would be breached in circumstances where the request relied upon evidence which had been so undermined by other material that it did not provide a bona fide basis for the investigation. The Court said that was not the case in these proceedings:

“The material upon which the police rely for the pursuit of this case is intelligence material. The applicant contends that the intelligence material is mistaken but that does not undermine the relevance of the intelligence material to the investigation. Since the exculpatory material advanced by the applicant could not undermine the relevance of the request for the investigation the duty of good faith did not require its disclosure.”

The Divisional Court in Northern Ireland considered in 2015 that the creation and publication of guidelines for prosecutors seeking international assistance might be of assistance bearing in mind that Article 8 was engaged. The Divisional Court in this case agreed that the publication of such
guidelines would be of assistance and it encouraged the PPS to take up this suggestion. The Court, however, went on to review the relevant parts of the guidance on extradition published by the Crown Prosecution Service (“CPS”). The guidelines applicable to requests for international assistance indicate that there should be a nexus between the facts of the case and the assistance requested. If coercive measures such as a search warrant are required the letter of request should indicate clearly that such measures are necessary, appropriate and proportionate. The guidance also indicates that the request should relate to specific evidence rather than being a “fishing expedition”. The Court held that the request in this case was necessary, appropriate and proportionate in the investigation of crime and was in respect of specific evidence.

The guidance further indicates that a summary of the case should be available which satisfies the prosecutor that an offence has been committed or that there are reasonable grounds for suspecting this to be the case. Confirmation is also required that the alleged criminality is under formal investigation. The Divisional Court was satisfied that the PSNI request of 3 September 2014 met those tests. It was suggested that there should have been a request to this applicant to consent to the provision of the material but the Court said it was clear that this applicant who had previously resisted attempts to secure such evidence in other cases would do the same in his own case.

The final issue raised was the engagement of Article 8. The Divisional Court considered that, assuming there is an interference with the private life of the applicant, it is for the purpose of the prevention of crime, it is in accordance with law and that this internationally recognised system provides the only method of securing the material. The interference in this case is potentially limited by the need to show relevance in the requested state, the obligation under the statute to return the material in the event that it is not used and the application by the PPS of the evidential and public interest tests before it could be used in a prosecution:

“The public interest in the investigation and, if appropriate, prosecution of serious terrorist offences significantly outweighs the interference with private life in this case.”

Conclusion

The Divisional Court concluded:

• At the time of the written request by the PSNI to the PPS on 3 September 2014 an investigation into the applicant’s criminal involvement in the explosion at Rugby Avenue, Belfast, his possession of an imitation firearm and his membership of the IRA was ongoing and continues;
• The PSNI and the PPS sought the interview tapes for use in those investigations;
• The errors in the ILOR were due to a distinct and surprising lack of care on the part of the PSNI and the PPS;
• The errors in the ILOR were not indicative of bad faith;
• The errors in the ILOR were not material to the request except insofar as the wrong section of the 1969 Act was included and that was corrected before the Order of the US court;
• There is not a duty of candour which required the disclosure by the PPS to the US Central Authority of any exculpatory material put forward by the applicant;
• The exculpatory material introduced by the applicant does not undermine the entitlement of the PSNI to investigate the matters contained in the intelligence material pointing to the involvement of the applicant in the offences;
• There is a duty of good faith on the PPS and PSNI in respect of the pursuit of an ILOR request but there was no breach of that duty;
• The US District Court had no role in determining whether a particular line of PSNI enquiry was appropriate and in this case the exculpatory material upon which the applicant relies was not relevant to the determination of the request;
• As the exculpatory material did not undermine the basis of the request or suggest any bad faith in pursuing the ILOR its disclosure to the US authorities was not required;
• There was no breach of Article 8 of the Convention.

The application was dismissed.

NOTES TO EDITORS

This summary should be read together with the judgment and should not be read in isolation. Nothing said in this summary adds to or amends the judgment. The full judgment will be available on the Judiciary NI website (https://judiciaryni.uk).

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.