Case 1:18-cr-00032-DLF Document 278 Filed 12/11/19 Page 1 of 18

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v.

Crim. No. 18-CR-32-2 (DLF)

CONCORD MANAGEMENT AND
CONSULTING LLC,
Defendant.

GOVERNMENT’S REPLY IN SUPPORT OF
MOTION FOR EARLY RETURN TRIAL SUBPOENA
The records sought by the government’s proposed trial subpoena to defendant Concord
Management and Consulting LLC are relevant and likely admissible under the Federal Rules of
Evidence. Moreover, the document requests set forth in the proposed trial subpoena are reasonably
specific because there is a sufficient likelihood, based on information gathered in the course of the
investigation, that the documents sought constitute relevant and admissible evidence. Concord’s
objections to the proposed subpoena are without merit. Concord has not met its burden to show
that the proposed subpoena requires it or any other entity to violate Russian law, and in any event
the foreign laws cited by Concord do not render the trial subpoena unreasonable or oppressive.
Concord cannot avoid the jurisdiction of this Court to authorize a trial subpoena by invoking its
status as a foreign corporation because Concord has voluntarily entered an appearance in this case
and thereby subjected itself to the jurisdiction of this Court. Finally, the trial subpoena will not
jeopardize the Court’s trial schedule. Accordingly, the government’s motion should be granted.
I.

The Proposed Trial Subpoena Meets the Requirements of Rule 17(c)
A party seeking an early-return trial subpoena under Federal Rule of Criminal Procedure

17(c) must show “(1) relevancy; (2) admissibility; [and] (3) specificity.” United States v. Binh
1

 Case 1:18-cr-00032-DLF Document 278 Filed 12/11/19 Page 2 of 18

Tango Vo, 78 F. Supp. 3d 171, 178 (D.D.C. 2015) (quoting United States v. Nixon, 418 U.S. 683,
700 (1974)). Concord does not dispute that the requested documents are relevant. Instead,
Concord argues that the requested documents are not admissible and that the subpoena is
insufficiently specific. Those arguments are without merit.
Because “it will often be difficult at the pretrial stage to determine with precision the
admissibility of certain documents,” the first two prongs of the test are satisfied so long as the
documents sought are “arguably… admissible under the Rules of Evidence.” United States v.
Libby, 432 F. Supp. 2d 26, 31 (D.D.C. 2006). Here, the requested documents are not just
“arguably” admissible, they are almost certainly admissible under multiple rules of evidence. The
records sought in categories one through six and nine are business records. See Fed. R. Evid.
803(6); see, e.g., United States v. Ford, 435 F.3d 204, 214-215 (2d Cir. 2006) (upholding
admission of calendar as business record); United States v. McPartlin, 595 F.2d 1321, 1348 (7th
Cir. 1979) (same and collecting cases to the same effect); United States v. Catabran, 836 F.2d 453,
457 (9th Cir. 1988) (upholding admission of ledger of company financial transactions as business
record and collecting cases to the same effect). The records sought in categories seven and eight
are likely admissions of a party opponent and co-conspirator statements in furtherance of the
conspiracy charged in the Indictment. See Fed. R. Evid. 801(d)(2)(D) (statement of agent or
employee of an opposing party is not hearsay); Fed. R. Evid. 801(d)(2)(E) (statement by coconspirator in furtherance of conspiracy is not hearsay). Contrary to Concord’s suggestion (Doc.
273, at 7), the Court need not “assume that there was, in fact, a conspiracy, and that Concord
participated in the alleged conspiracy in exactly the way” that the Superseding Indictment
describes in order to grant the government’s motion. Rather, as Libby makes clear, because a trial
subpoena is issued at the pretrial stage, the evidence need only be “arguably” admissible. With

2

 Case 1:18-cr-00032-DLF Document 278 Filed 12/11/19 Page 3 of 18

respect to co-conspirator statements, the “general practice in this jurisdiction” is to allow the
government to conditionally admit the statements and defer ruling on the admissibility of the
statements until the conclusion of the government’s case in chief. United States v. Apodaca, 275
F. Supp. 3d 123, 138-139 (D.D.C. 2017). Under that general practice, the Court need not “assume”
the existence of the conspiracy in order to grant the government’s request for an early-return trial
subpoena requesting documents that likely would constitute co-conspirator statements. Rather,
the Court can (and should) conclude from the allegations in the Superseding Indictment that the
requested documents are at least arguably admissible subject to connection at trial and authorize
the trial subpoena on that basis.
The proposed subpoena is also sufficiently specific. Rule 17 does not require “exquisite
specificity,” United States v. Poindexter, 727 F. Supp. 1501, 1510 (D.D.C. 1989). Instead, the
Rule requires only that the proponent can “reasonably specify the information…believed to be
contained in the documents sought” based on information gathered during the course of the
investigation. Libby, 432 F. Supp. 2d at 31 (quoting Noriega, 764 F. Supp. 1480, 1493 (S.D. Fla.
1991)). Here, each of the document requests in the subpoena is based on information that the
government obtained during its investigation providing a basis to conclude that the request will
yield evidence of the conspiracy.
Thus, the Superseding Indictment alleges that defendant Yevgeniy Prigozhin controlled
Concord.

Doc. 247 ¶ 12.

This allegation is supported by evidence gathered during the

investigation and produced in discovery, including a Russian Federation tax record listing
Prigozhin as the Founder of Concord Management and Consulting. The records requested in
categories one and two of the proposed subpoena call for records relevant to this allegation.

3

 Case 1:18-cr-00032-DLF Document 278 Filed 12/11/19 Page 4 of 18

The Superseding Indictment further alleges that the conspirators used computer
infrastructure to conceal their Russian identities. Doc. 247 ¶¶ 39-40. This allegation is supported
by evidence gathered during the investigation and produced in discovery, including search warrant
returns for social media accounts and subpoena returns showing that the conspirators accessed the
social media accounts that they used to further the conspiracy through virtual private networks and
virtual private servers hosted in the United States. The records requested in category three call for
Internet Protocol address records that would further connect Concord to that activity. In addition,
the Superseding Indictment references email communications among the conspirators in
furtherance of the conspiracy. Id. ¶¶ 13b, 33, 37, 38, 42, 43a. The Internet Protocol address
records requested in category three would further connect Concord to those communications.
The Superseding Indictment further alleges that Concord participated in the conspiracy by
funding the operations of the Internet Research Agency. Doc. 247 ¶ 11. The Superseding
Indictment also identifies other Russian entities that Concord used to conceal its conduct. Id. This
allegation is supported by evidence gathered during the investigation and produced in discovery,
including budget information spreadsheets emailed between an accountant for the Internet
Research Agency and employees of Concord. The records requested in categories four through
seven are relevant to these allegations.
Finally, evidence gathered during the investigation and produced in discovery shows
contacts between employees of the Internet Research Agency and employees of Concord. In
addition to the emails regarding budget spreadsheets discussed above, the government has obtained
screenshots of calendar entries showing Prigozhin meeting with at least one IRA employee.
The evidence discussed above establishes that the categories of records sought by the
proposed subpoena do not constitute the sort of fishing expedition prohibited by Rule 17(c). On

4

 Case 1:18-cr-00032-DLF Document 278 Filed 12/11/19 Page 5 of 18

the contrary, the courts have upheld trial subpoenas seeking these kinds of records. See, e.g.,
United States v. Nosal, 291 F.R.D. 403, 409 (N.D. Cal. 2013) (upholding in part trial subpoena
issued by defendant to third party requesting “any and all…documents” related to particular
allegations in indictment); United States v. Rajaratnam, 2011 U.S. Dist. LEXIS 10176, at *8-*9
(S.D.N.Y. Feb. 2, 2011) (granting government’s application for trial subpoena to corporation
seeking certain trading records, corporate documents, and “any and all e-mails sent or receiving
by” the defendant regarding certain subjects on the ground that the subpoena requested categories
of documents “in furtherance of the alleged conspiracies”); Libby, 432 F. Supp. 2d at 35-36
(upholding trial subpoena requesting “all documents” referencing certain individuals or discussing
certain topics); United States v. McCollom, 651 F. Supp. 1217, 1219-25 (N.D. Ill. 1987) (denying
in relevant part motion to quash trial subpoena requesting “any and all original checks, check
registers, or withdrawal slips, or other information reflecting withdrawals of funds or the drawing
on funds from accounts” owned by defendant and ruling that “[d]esignation of kinds of documents
with reasonable particularity will suffice”); United States v. Gel Spice Co., 601 F. Supp. 1214,
1220 (E.D.N.Y. 1985) (denying motion to quash trial subpoena issued to corporate defendant
requesting “records regarding the shipment and importation of certain foods” and concluding that
Rule 17(c) “provides for the subpoena of corporate records”).
The case relied upon by Concord, United States v. North, 708 F. Supp. 402 (D.D.C. 1989),
only underscores the government’s argument. In North, the Court denied the government’s motion
for a trial subpoena requesting notebooks used by the defendant over a nearly four-year period on
the ground that the government could not “identify any material entry or practice that assures the
Court that the standards of relevance, materiality and necessity” would be satisfied. Id. at 404.
The Court further noted that “the massive documentation already in the case suggests that further

5

 Case 1:18-cr-00032-DLF Document 278 Filed 12/11/19 Page 6 of 18

data would be superfluous.” Id. Here, by contrast, for each category of requested records, the
government has identified evidence and information that would show that the documents within
each category are reasonably likely to be relevant and admissible.
II.

Concord’s Other Objections to the Proposed Subpoena Lack Merit
Concord contends (Doc. 273, at 8-17) that the motion “ignores” certain “complexities.”

Specifically, Concord posits that producing the requested records may violate Russian law (id. at
8-13), that this Court lacks authority to issue an order to produce records in this case to a party that
has appeared in this case (id. at 13-16), and that the motion should be denied because any records
produced now would come too close in time to the scheduled April trial date (id. at 16-17). Each
argument lacks merit.
A. Concord’s Asserted Conflict with Russian Law Does Not Render the Subpoena
Unreasonable or Oppressive
1.

Concord has not met and cannot meet its burden of showing that
compliance would violate Russian law

As “the party who ‘relies on foreign law,’” Concord “assumes the burden of showing that
such law prevents compliance.” In re Grand Jury Subpoena, 912 F.3d 623 (D.C. Cir. 2019)
(quoting In re Sealed Case, 825 F.2d 494, 498 (D.C. Cir. 1987) (per curiam)). Concord has not
come close to meeting that burden. Instead, Concord purports to quote what is presumably its own
translation of Russian statutes. (Concord does not provide that translation to the Court or the
government but merely links to Russian-language text.) Concord then asserts that compliance
with this subpoena would violate those statutes without providing any detailed textual argument
or citing any example of a Russian court taking that position. Cf. In re Grand Jury Subpoena, 912
F.3d at 634 (discounting declarations of retained experts and foreign “regulatory body” that cited
no court case). Indeed, although Concord sometimes states that compliance with the requested
subpoena would require Concord to violate Russian law, it elsewhere hedges by stating only that
6

 Case 1:18-cr-00032-DLF Document 278 Filed 12/11/19 Page 7 of 18

there is “potential legal peril” or that compliance would “arguably” violate a statute. Doc. 273, at
8, 9 (emphases added). Although Concord (a Russian company) and its Russian lawyers are far
better positioned than the government to review Russian law, the most that it can do is offer
qualified assertions based on translations that it has not even provided to the government or the
Court.
Concord’s asserted conflicts with Russian law are, in any event, implausible to say the
least. First, Concord suggests that turning over its own business records would “arguably”
constitute “rendering financial, logistical, consultancy or other assistance to a foreign government
. . . in activities directed against the security of the Russian Federation.” Doc. 273, at 9 (quoting
Concord’s translation). 1 Yet Concord has repeatedly declared that it is not part of the Russian
government and has sought to distance its activities from that of the Russian government. The
only apparent reason that Concord views providing business records for this trial as an action
“directed against the security of the Russian Federation” is that the United States sanctioned the
defendants in this case based on the election interference activities that the Indictment alleges was
the motive for the conspiracy to defraud the United States government. Concord, however, does
not explain why sanctions of non-governmental persons in Russia concern “the security of the
Russian federation.” Id. Indeed, Concord’s acknowledgement (id. at 10 n.3) that Russia is
“considering” a bill barring the provision of information “that leads to the imposition of sanctions”
underscores the implausibility of the argument under the existing statute. Nor, in any event, does
Concord explain why providing records that concern entities and individuals who have already

1

Other translations available online only further suggest that “treason” concerns rending
assistance “in hostile activities to the detriment of the external security of the Russian Federation.”
https://www.wipo.int/edocs/lexdocs/laws/en/ru/ru080en.pdf. It is unclear if that particular
formulation is out of date, but then again suggests the intuitive point that merely providing business
records to the United States is not “treason.”
7

 Case 1:18-cr-00032-DLF Document 278 Filed 12/11/19 Page 8 of 18

been sanctioned could be “directed against” Russia’s interest in preventing sanctions of private
persons.
Additionally, although Concord has not provided whatever translation its American
attorneys presumably reviewed before making these representations to the Court, a Google
translation of the cited treason provision states that persons “shall be exempted from criminal
liability” if they “voluntarily and promptly communicate[] to the authorities or otherwise
contribute[] to the prevention of further damage” and their “actions do not contain another
composition crime.” Although the government is not currently in a position to opine on this
exception, it appears to provide a potentially-broad exemption from liability. Concord’s failure to
address the full section underscores the failure to meet its burden.
Second, Concord states (Doc. 273, at 10-11) that “[p]roviding information on Russian
computer networks” would run afoul of what appears to be a cyber-security law. Here Concord
does not even provide its own translation of that law but instead paraphrases it as barring “any
violation of the rules of access or operation of computer networks that leads to a major loss,
blocking, modification or copying of computer information.” Id. at 11.

As an initial matter,

Concord does not explain what network access rule would be violated. Indeed, insofar as the
putative subpoena seeks Concord’s own business records, it is unlikely that a network access rule
prevents Concord from removing or transferring those records.
Concord also acknowledges that this law applies only where the activity has a serious,
detrimental effect.

Concord’s paraphrasing states that there must be “a major loss, blocking,

modification or copying of computer information.” Id. A Google translation of the source cited
by Concord similarly states that there must be “destruction, blocking, modification, or copying of
computer information,” but adds “which caused major damage.” One English-language source

8

 Case 1:18-cr-00032-DLF Document 278 Filed 12/11/19 Page 9 of 18

describes this as governing “violations of special rules and protocols for storage, processing or
transfer of digital data or equipment, as well as violations of network access rules that lead to
serious harm.” 2 Yet Concord provides scant explanation for how providing records such as
corporate documents or calendar entries could result in such serious damage to a computer
network. Concord speculates that “information provided by Concord could or would be used for
surveillance purposes” or “cyberattacks.” Doc. 273, at 11. Concord does not begin to explain why
the categories of information sought here—which include corporate registration documents,
financial records, and calendar entries—would be useful for mounting a cyber attack or why the
alleged intervening cause of further U.S. government action would constitute Concord’s having
caused the hypothetical damage.
Finally, with respect to three categories of records—records of meetings and both
categories of communications—Concord declares (Doc. 273, at 10-11) that producing the records
would violate Russian privacy laws governing “personal data” and “privacy.” Concord, however,
provides no explanation for whether and what information in Concord’s possession constitutes
personal data or why particular data or identifiers could not be redacted if appropriate. Nor does
Concord support the implausible assertion that giving someone corporate emails or records of
meetings to a court is illegal. In fact, one secondary source states that “no protection is granted
against disclosure to the responsible authorities in the course of an official investigation” 3
2.

Even if Concord had or could meet its burden to shown a conflict with foreign
law, the requested subpoena would not be unreasonable or oppressive

Even if Concord could show that the subpoena would subject it to conflicting legal
obligations, the subpoena would not be unreasonable or oppressive. Courts have long recognized

2

http://www.mondaq.com/russianfederation/x/641110/Crime/Business+Crime+2018

3

http://www.mondaq.com/russianfederation/x/641110/Crime/Business+Crime+2018
9

 Case 1:18-cr-00032-DLF Document 278 Filed 12/11/19 Page 10 of 18

that the operation of foreign law “do[es] not deprive an American court of the power to order a
party subject to its jurisdiction to produce evidence even though the act of production may violate
that statute.” Societe Nationale Industrielle Aerospatiale v. U.S. Dist. Court, 482 U.S. 522, 544
n.29 (1987); see In re Sealed Case, 932 F.3d 915, 931-939 (D.C. Cir. 2019). “[A]lthough courts
recognize comity as an important objective, there is little doubt that ‘[a] United States Court has
the power to order any party within its jurisdiction to testify or produce documents regardless of a
foreign sovereign’s views to the contrary.’” In re Sealed Case, 832 F.2d 1268, 1283 (D.C. Cir.
1987) (citation omitted).
If confronted with such a conflict, courts must engage in a comity balancing that considers
a “constellation of factors” including the importance of the requested records, the degree of
specificity, whether the information originated in the United States, the availability of alternative
means to obtain the same records, the extent to which noncompliance would undermine important
interests of the United States or of the country where the information is located, hardship on the
subpoenaed party, and whether that party has acted in good faith. Sealed Case, 932 F.3d at 931932; see Société Nationale, 482 U.S. at 544 n.28; Restatement (Third) of the Foreign Relations
Law of the United States § 442(1)(c) (1987); see also, e.g., In re: Grand Jury Proceedings Bank
of Nova Scotia, 740 F.2d 817, 827 (11th Cir. 1984); United States v. Vetco, Inc., 691 F.2d 1281,
1288 (9th Cir. 1981).
Most significantly, the United States has an overwhelming interest in obtaining evidence
that bears on this case.

“The United States has a strong national interest in the effective

enforcement of its criminal laws.” United States v. Davis, 767 F.2d 1025, 1035 (2d Cir. 1985);
see Vetco, 691 F.2d at 1288 n.9 (in conducting comity analysis, “[i]t is important to distinguish
between action brought by the government . . . and private suits”); see also Davis, 767 F.2d at

10

 Case 1:18-cr-00032-DLF Document 278 Filed 12/11/19 Page 11 of 18

1035 (noting that “the subpoena . . . arose in the course of a criminal suit brought by the United
States government” and therefore “accord[ing] some deference” to the government’s decision that
the “benefits of disclosure” outweigh any diplomatic friction); cf. Pasquantino v. United States,
544 U.S. 349, 369 (2005); United States v. Sinovel Wind Group, 794 F.3d 787, 792 (7th Cir. 2015).
This is all the more so in a case that does not just concern any alleged violation of U.S. criminal
law, but rather a systematic effort to interfere in a presidential election and a conspiracy to deceive
and impair the government agencies charged with monitoring, regulating, and enforcing laws
concerning foreign influence. The government believes that the requested evidence is important
in this case. While the government has reason to believe that the requested records exist and are
in Concord’s control, the government believes that it cannot obtain the same records elsewhere.
And as discussed above, the requested subpoena is specific and tailored to those categories of
documents that are believed to exist.
Additionally, Concord voluntarily chose to appear in this case. And, as the Court well
knows, Concord has obtained substantial discovery and continues to seek additional information
about how the United States detected its activities and detects and responds to related activities
more generally. Foreign entities should not lightly be permitted to come to U.S. courts while
shielding themselves from the same obligations that would apply to American defendants. Cf. In
re Grand Jury Proceedings Bank of Nova Scotia, 740 F.2d 817, 828 (11th Cir. 1984) (explaining
that where a bank “voluntarily elected” to do business abroad, it “accepted the incidental risk of
occasional inconsistent governmental actions” and “cannot expect to avail itself of the benefits of
doing business here without accepting the concomitant obligations”).
Requiring compliance would do little, if any, violence to Russian sovereign interests.
Although Russia’s generalized interests in national security, computer network integrity, and

11

 Case 1:18-cr-00032-DLF Document 278 Filed 12/11/19 Page 12 of 18

privacy may be weighty in some sense, the harm to those interests incurred by disclosing the
particular records requested here is non-existent or minimal. Cf. Societe Nationale, 482 U.S. at
544 n.29 (foreign state’s “blocking” statute “is relevant” to “comity analysis only to the extent that
its terms and its enforcement identify the nature of the sovereign interests in nondisclosure of
specific kinds of material.”); United States v. First Nat’l City Bank, 396 F.2d 897, 903 (2d Cir.
1968) (“mere existence of a bank secrecy doctrine” does not automatically mean that its violation
would undermine “an important public policy of [the enacting country]”).
Even if compliance with the subpoena violated Russian law, Concord has also provided
little reason to believe that it would, in fact, be prosecuted. At most, Concord’s “violation” would
appear to be a tangential application of the statutes compelled by a U.S. court order. Any claimed
hardship warrants little if any weight where there is no example of someone being prosecuted
under similar circumstances. See Linde v. Arab Bank, PLC, 706 F.3d 92, 114 (2d Cir. 2013);
Vetco, Inc., 691 F.2d at 1289; see also Restatement (Fourth) of the Foreign Relations Law of the
United States § 442, comment b (foreign-state-compulsion defense “requires,” inter alia, that “risk
of punishment must not be purely hypothetical”). And countries are generally less likely to
prosecute their citizens for disclosing business records to foreign governments and as ordered by
a foreign court than if disclosing to private parties or doing so voluntarily. See, e.g., Linde, 706
F.3d at 114. Indeed, Concord’s suggestion that the Russian State has an interest in Concord and
the sanctions levied against it further calls into question whether Russia would prosecute Concord.
Cf. Aerospatiale, 482 U.S. at 528 n.10, 544 n.29 (corporation owned by government “stand[s] in
most advantageous position” in decision whether to prosecute); Societe Internationale v. Rogers,
357 U.S. 197, 205 (1958) (Swiss banking company was “in a most advantageous position to plead
with its own sovereign for relaxation of penal laws” relating to bank secrecy).

12

 Case 1:18-cr-00032-DLF Document 278 Filed 12/11/19 Page 13 of 18

Rather than engage with the controlling legal standard, Concord declares that if the
subpoena required it “to violate Russian law on Russian soil,” that would be “improper under
controlling law.” Doc. 273, at 9 (citing In re Sealed Case, 825 F.2d at 498); see id. at 8 (asserting
that “under circumstances like those here” a foreign law conflict would render the subpoena
“unreasonable or oppressive). Concord, however, misunderstands the “controlling law.” The
primary case Concord cites, Sealed Case, 825 F.2d at 498, itself appears to have conducted a multifactor balancing. The court made clear that its decision turned on and was expressly limited to
“the peculiar facts of th[at] case.” Id.; see id. at 499 (“emphasiz[ing] again the limited nature of
[its] holding”).

The court deemed it “[m]ost important” that the contempt order at issue

“represent[ed] an attempt by an American court to compel a foreign person to violate the laws of
a different foreign sovereign on that sovereign’s own territory,” id.—that is, that the order
compelled a bank owned by one country to violate a second country’s laws. The court also stressed
that the subpoena was directed to “a third party that has not been accused of any wrongdoing,” that
there was no dispute about the application of foreign law, and that there were likely alternative
means to obtain at least some of the same evidence. Id. at 498-499. Here, by contrast, the subpoena
is directed to an indicted defendant, the application of foreign law proffered by Concord is dubious
at best, and there are no alternative means to obtain the evidence. In any event, as discussed, the
Supreme Court and D.C. Circuit have subsequently made clear that even a proven violation of
foreign law does not necessarily render a subpoena unreasonable or oppressive. See pp. 9-10,
supra; see also Note, The Aerospatiale Dilemma: Why U.S. Courts Ignore Blocking Statutes and
What Foreign States Can Do About It, 106 Cal. L. Rev. 231, 245 (2018) (surveying post-Societe
Nationale federal authorities and finding “[c]ourts compelled foreign parties to produce discovery
in violation of foreign law in thirty-seven of . . . forty-two contemplated orders”).

13

 Case 1:18-cr-00032-DLF Document 278 Filed 12/11/19 Page 14 of 18

In sum, Concord has not made a credible argument the subpoena would force Concord to
violate Russian law. And, in all events, the asserted conflict with Russian law would not render
the subpoena invalid. “No nation is under an unremitting obligation to enforce foreign interests
which are fundamentally prejudicial to those of the domestic forum.” Laker Airways v. Sabena,
731 F.2d 909, 937 (D.C. Cir. 1984). Concord has not come close to demonstrating that the
requested subpoena would be unreasonable or oppressive.
B. This Court Can Issue An Order In This Case To A Party Who Has Chosen To Appear
In The Case
Concord next contends (Doc. 273, at 13-16) that because it is a foreign corporation located
abroad, it cannot be issued a subpoena to produce documents in connection with this case. In
particular, Concord urges that its trial counsel “has no authority to accept” a trial subpoena (id. at
14) and that the Court, in any event, lacks personal jurisdiction over Concord and therefore cannot
order it to produce records (id. at 14-16). Concord ignores the critical fact that it is properly a
party in this case. The Court therefore can issue orders to Concord concerning this case. That
includes a trial subpoena—an order to produce records that are relevant to and admissible in the
case. See Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 264 (2004) (a “tribunal has
jurisdiction over those appearing before it” and therefore can “order them to produce evidence”)
(discussing authority of foreign courts); Restatement (Fourth) of the Foreign Relations Law of the
United States § 426(1) (2018) (“A court in the United States, when authorized by law, may order
a person subject to its jurisdiction to produce documents or other forms of evidence”); cf., e.g., Shi
v. New Mighty United States Trust, 918 F.3d 944, 951 (D.C. Cir. 2019) (explaining that “U.S.
witnesses are subject to subpoena by U.S. courts and those courts can reach foreign non-party
witnesses” through other, specified means) (emphasis added). Concord’s reliance on cases that

14

 Case 1:18-cr-00032-DLF Document 278 Filed 12/11/19 Page 15 of 18

concern the personal jurisdiction over foreign corporations who are not parties to the relevant case
therefore have no bearing on this Court’s authority to issue a subpoena to Concord.
Lest there be any doubt, Concord is a corporation that voluntarily chose to appear and is
participating in this case through counsel. See Fed. R. Crim. P. 43(b)(1); Def. Opp. to Mot. to
Continue Initial Appearance and Arraignment (Doc. 8), at 2 (citing United States v. Kolon Industs.
Inc., 926 F. Supp. 2d 794, 798 (E.D. Va. 2013) for the proposition that “voluntary appearance by
a defendant can give rise to jurisdiction”).

Separate and aside from establishing personal

jurisdiction based on a person’s physical presence or business contacts with a forum, a court may
establish personal jurisdiction based on consent. In re Sealed Case, 932 F.3d at 922; see Insurance
Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 703-704 (1982) (describing
various examples of parties consenting); see also Restatement (Fourth) of the Foreign Relations
Law of the United States § 423(1) (2018) (“A court in the United States may exercise in personam
jurisdiction over a defendant only if the defendant has been properly served or has waived
service.”) (emphasis added). When a foreign corporation chooses to appear in litigation in the
District of Columbia, that corporation subjects itself to process arising out of that litigation. See
Kelberine v. Societe Internationale, 363 F.2d 989, 993 (D.C. Cir. 1966) (foreign corporation that
filed civil suit in the District of Columbia “voluntarily subjected itself to the jurisdiction of the
court” and therefore “the agent of the corporation present in the District for the purpose of
conducting the litigation in the courts here was subject to process”). That is the case here.
In fact, after Concord initially disputed whether it had been properly served with a
summons in this case, the Court confirmed that defense counsel was authorized “to enter a
voluntary appearance in this matter and to subject [Concord] to the jurisdiction of this Court.”
5/9/18 Tr. 4-5. The Court clarified that Concord understood “that by doing so, it must also comply

15

 Case 1:18-cr-00032-DLF Document 278 Filed 12/11/19 Page 16 of 18

with the Federal Rules of Criminal Procedure, the rules of this Court, and with the orders of this
Court,” and defense counsel agreed. Id. at 5. A trial subpoena is an order of this Court issued in
this case pursuant to the Federal Criminal Rules. Yet Concord (through that same counsel) now
suggests that the Court has no authority to issue such an order to Concord. Indeed, this raises the
question whether Concord believes that the Court has personal jurisdiction with respect to other
orders issues in this case, such as the protective order governing the extensive discovery provided
to the defense, or the Court’s scheduling order requiring Concord to provide the government with
trial exhibits. 4
C. Concord’s Scheduling Argument Lacks Merit
Finally, the trial subpoena to Concord will not “completely derail the Court’s pretrial
scheduling order.” Doc. 273, at 16. The government filed its motion requesting authority to issue
an early-return trial subpoena to Concord over four months before the scheduled trial date in this
case. That gives Concord plenty of time to produce the requested documents, most of which should
be easy to gather and all of which should be easy to identify, on a rolling basis. Concord does not
even attempt to explain, for example, why it cannot produce its own corporate registration
documents, or its payment records, or calendar entries, well in advance of the April 2020 trial date.
Nor does Concord explain why it would be so difficult to identify communications with particular

4

Concord additionally observes (Doc. 273, at 13) that the cases cited by the government in
its motion for an early return trial subpoena did not concern a foreign corporation and records
located abroad. Concord does not explain what, if any, further relevance that has to its argument.
As discussed, where courts have jurisdiction over a person, courts can order that person to produce
records wherever they may be located. That includes corporations located abroad. See, e.g.,
Sealed Case, 932 F.3d at 924-927. Concord has chosen to appear and participate in this case. This
Court therefore has jurisdiction over Concord to issue orders concerning this case. As for the
asserted “importan[ce]” of obtaining an immunity order for a subpoenaed witness, Doc. 273, at
13, it is black-letter law that corporations have no privilege against self-incrimination. Braswell
v. United States, 487 U.S. 99, 102 (1988).
16

 Case 1:18-cr-00032-DLF Document 278 Filed 12/11/19 Page 17 of 18

identified individuals. The government expects that the trial subpoena return will yield a limited
number of documents that the government would designate as additions to its exhibit list. These
limited number of documents likely would generate very little pretrial litigation, since the
categories of documents identified in the proposed subpoena are plainly relevant and admissible
as business records and admissions of a party opponent. And if Concord truly were prejudiced by
the timing, then Concord could seek a continuance of the trial date or any other relief it deemed
appropriate at that point. There is no legal authority to support the proposition that the government
must serve a trial subpoena more than four months in advance of a trial date in order to obtain the
requested documents.
*

*

*

*

*

Like any criminal defendant, Concord has received the protections and the benefits of the
Federal Rules of Criminal Procedure, including the right to file pretrial motions challenging the
validity of the indictment, the right to pretrial discovery, the right to a bill of particulars, and the
right to file motions to compel documents and information. Having received those benefits,
Concord now looks to inapplicable foreign laws and inapposite cases concerning non-party
subpoenas to avoid the basic obligation of every criminal defendant—the obligation to subject
itself to the jurisdiction of the Court, an obligation that Concord’s counsel assumed in their
representations to the Court from their first appearance in this case. Concord’s arguments should
be rejected and the government should be permitted to issue an early-return trial subpoena
requesting the categories of documents set forth in the proposed attachment with a return date that
the Court deems appropriate.
Respectfully submitted,

JOHN C. DEMERS

JESSIE K. LIU
17

 Case 1:18-cr-00032-DLF Document 278 Filed 12/11/19 Page 18 of 18

Assistant Attorney General for National Security

United States Attorney

By: /s/
Heather N. Alpino
U.S. Department of Justice
National Security Division
950 Pennsylvania Ave. NW
Washington, D.C. 20530
Telephone: (202) 514-2000

By: /s/
Luke Jones
Kathryn Rakoczy
Jonathan Kravis
555 Fourth Street NW
Washington, D.C. 20530
Telephone: (202) 252-6886

18