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 KINGDOMON MUTUAL ASSISTANCE IN CRIMINAL MATTERS IN THE MATTER OF DOLOURS PRICE, UNITED STATES,
Petitioner – Appellee
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.
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.
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
Dated: February 20, 2013