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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

Case: 12-1236 Document: 00116406566 Page: 1 Date Filed: 07/18/2012 Entry ID: 565817

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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

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CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

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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

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STATUTES

28 U.S.C. 1291.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

18 U.S.C. 3512.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 6

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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.

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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.

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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.

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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

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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

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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].

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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

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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].

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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].

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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

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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.

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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

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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).

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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

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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

Gov't Opp 12-1236

Documents

Transcript of Gov't Opp 12-1236