18 U.S.C. § 3492 — Commission to consular officers to au-

Page 773 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 3492 ‘‘General Accounting Office’’ was substituted for ‘‘proper accounting officer of the Treasury’’. Editorial Notes AMENDMENTS 2004—Pub. L. 108–271 substituted ‘‘Government Ac- countability Office’’ for ‘‘General Accounting Office’’. § 3488. Intoxicating liquor in Indian country as evidence of unlawful introduction The possession by a person of intoxicating liq- uors in Indian country where the introduction is prohibited by treaty or Federal statute shall be prima facie evidence of unlawful introduction. (June 25, 1948, ch. 645, 62 Stat. 834.) HISTORICAL AND REVISION NOTES Based on section 245 of title 25, U.S.C., 1940 ed., Indi- ans (May 18, 1916, ch. 125, § 1, 39 Stat. 124). The only change made was the insertion of the word ‘‘Indian’’ before ‘‘country’’, to substitute specificity for generality. (See definition of ‘‘Indian country’’ in sec- tion 1151 of this title.) § 3489. Discovery and inspection—(Rule) SEE FEDERAL RULES OF CRIMINAL PROCEDURE Inspection of documents and papers taken from de- fendant, Rule 16. (June 25, 1948, ch. 645, 62 Stat. 834.) § 3490. Official record or entry—(Rule) SEE FEDERAL RULES OF CRIMINAL PROCEDURE Proof of official record or entry as in civil actions, Rule 27. (June 25, 1948, ch. 645, 62 Stat. 834.) § 3491. Foreign documents Any book, paper, statement, record, account, writing, or other document, or any portion thereof, of whatever character and in whatever form, as well as any copy thereof equally with the original, which is not in the United States shall, when duly certified as provided in section 3494 of this title, be admissible in evidence in any criminal action or proceeding in any court of the United States if the court shall find, from all the testimony taken with respect to such foreign document pursuant to a commission exe- cuted under section 3492 of this title, that such document (or the original thereof in case such document is a copy) satisfies the authentication requirements of the Federal Rules of Evidence, unless in the event that the genuineness of such document is denied, any party to such criminal action or proceeding making such denial shall establish to the satisfaction of the court that such document is not genuine. Nothing con- tained herein shall be deemed to require authen- tication under the provisions of section 3494 of this title of any such foreign documents which may otherwise be properly authenticated by law. (June 25, 1948, ch. 645, 62 Stat. 834; May 24, 1949, ch. 139, § 52, 63 Stat. 96; Pub. L. 88–619, § 2, Oct. 3, 1964, 78 Stat. 995; Pub. L. 94–149, § 3, Dec. 12, 1975, 89 Stat. 806.) HISTORICAL AND REVISION NOTES 1948 ACT Based on section 695a of title 28, U.S.C., 1940 ed., Judi- cial Code and Judiciary (June 20, 1936, ch. 640, § 2, 49 Stat. 1562.) 1949 ACT This section [section 52] corrects section 3491 of title 18, U.S.C., so that the references therein will be to the correct section numbers in title 28, U.S.C., as revised and enacted in 1948. Editorial Notes REFERENCES IN TEXT The Federal Rules of Evidence, referred to in text, are set out in the Appendix to Title 28, Judiciary and Judicial Procedure. AMENDMENTS 1975—Pub. L. 94–149 substituted ‘‘the authentication requirements of the Federal Rules of Evidence’’ for ‘‘the requirements of section 1732 of Title 28’’. 1964—Pub. L. 88–619 struck out ‘‘and section 1741 of Title 28’’ after ‘‘section 3494 of this title’’ in two places. 1949—Act May 24, 1949, substituted ‘‘section 1741’’ for ‘‘section 695e’’ and ‘‘section 1732’’ for ‘‘section 695’’ wherever appearing. § 3492. Commission to consular officers to au- thenticate foreign documents (a) The testimony of any witness in a foreign country may be taken either on oral or written interrogatories, or on interrogatories partly oral and partly written, pursuant to a commis- sion issued, as hereinafter provided, for the pur- pose of determining whether any foreign docu- ments sought to be used in any criminal action or proceeding in any court of the United States are genuine, and whether the authentication re- quirements of the Federal Rules of Evidence are satisfied with respect to any such document (or the original thereof in case such document is a copy). Application for the issuance of a commis- sion for such purpose may be made to the court in which such action or proceeding is pending by the United States or any other party thereto, after five days’ notice in writing by the appli- cant party, or his attorney, to the opposite party, or his attorney of record, which notice shall state the names and addresses of witnesses whose testimony is to be taken and the time when it is desired to take such testimony. In granting such application the court shall issue a commission for the purpose of taking the testi- mony sought by the applicant addressed to any consular officer of the United States conven- iently located for the purpose. In cases of testi- mony taken on oral or partly oral interrog- atories, the court shall make provisions in the commission for the selection as hereinafter pro- vided of foreign counsel to represent each party (except the United States) to the criminal ac- tion or proceeding in which the foreign docu- ments in question are to be used, unless such party has, prior to the issuance of the commis- sion, notified the court that he does not desire the selection of foreign counsel to represent him at the time of taking of such testimony. In cases of testimony taken on written interrogatories, such provision shall be made only upon the re- quest of any such party prior to the issuance of Page 774 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 3493 such commission. Selection of foreign counsel shall be made by the party whom such foreign counsel is to represent within ten days prior to the taking of testimony or by the court from which the commission issued, upon the request of such party made within such time. (b) Any consular officer to whom a commis- sion is addressed to take testimony, who is in- terested in the outcome of the criminal action or proceeding in which the foreign documents in question are to be used or has participated in the prosecution of such action or proceeding, whether by investigations, preparation of evi- dence, or otherwise, may be disqualified on his own motion or on that of the United States or any other party to such criminal action or pro- ceeding made to the court from which the com- mission issued at any time prior to the execu- tion thereof. If after notice and hearing, the court grants the motion, it shall instruct the consular officer thus disqualified to send the commission to any other consular officer of the United States named by the court, and such other officer shall execute the commission ac- cording to its terms and shall for all purposes be deemed the officer to whom the commission is addressed. (c) The provisions of this section and sections 3493–3496 of this title applicable to consular offi- cers shall be applicable to diplomatic officers pursuant to such regulations as may be pre- scribed by the President. For purposes of this section and sections 3493 through 3496 of this title, the term ‘‘consular officers’’ includes any United States citizen who is designated to per- form notarial functions pursuant to section 1750 of the Revised Statutes, as amended (22 U.S.C. 4221). (June 25, 1948, ch. 645, 62 Stat. 834; May 24, 1949, ch. 139, § 53, 63 Stat. 96; Pub. L. 94–149, § 4, Dec. 12, 1975, 89 Stat. 806; Pub. L. 105–277, div. G, subdiv. B, title XXII, § 2222(c)(2), Oct. 21, 1998, 112 Stat. 2681–818.) HISTORICAL AND REVISION NOTES 1948 ACT Based on section 695b of title 28, U.S.C., 1940 ed., Judi- cial Code and Judiciary (June 20, 1936, ch. 640, § 3, 49 Stat. 1562). 1949 ACT This section [section 53] corrects section 3492(a) of title 18, U.S.C., so that the reference in the first sen- tence thereof will be to the correct section number in title 28, U.S.C., as revised and enacted in 1948. Editorial Notes REFERENCES IN TEXT The Federal Rules of Evidence, referred to in subsec. (a), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure. AMENDMENTS 1998—Subsec. (c). Pub. L. 105–277 inserted at end ‘‘For purposes of this section and sections 3493 through 3496 of this title, the term ‘consular officers’ includes any United States citizen who is designated to perform no- tarial functions pursuant to section 1750 of the Revised Statutes, as amended (22 U.S.C. 4221).’’ 1975—Subsec. (a). Pub. L. 94–149 substituted ‘‘the au- thentication requirements of the Federal Rules of Evi- dence’’ for ‘‘the requirements of section 1732 of Title 28’’. 1949—Subsec. (a). Act May 24, 1949, substituted ‘‘sec- tion 1732’’ for ‘‘section 695’’. § 3493. Deposition to authenticate foreign docu- ments The consular officer to whom any commission authorized under section 3492 of this title is ad- dressed shall take testimony in accordance with its terms. Every person whose testimony is taken shall be cautioned and sworn to testify the whole truth and carefully examined. His tes- timony shall be reduced to writing or type- writing by the consular officer taking the testi- mony, or by some person under his personal su- pervision, or by the witness himself, in the pres- ence of the consular officer and by no other per- son, and shall, after it has been reduced to writ- ing or typewriting, be subscribed by the witness. Every foreign document, with respect to which testimony is taken, shall be annexed to such testimony and subscribed by each witness who appears for the purpose of establishing the genu- ineness of such document. When counsel for all the parties attend the examination of any wit- ness whose testimony is to be taken on written interrogatories, they may consent that oral in- terrogatories in addition to those accompanying the commission may be put to the witness. The consular officer taking any testimony shall re- quire an interpreter to be present when his serv- ices are needed or are requested by any party or his attorney. (June 25, 1948, ch. 645, 62 Stat. 835.) HISTORICAL AND REVISION NOTES Based on section 695c of title 28, U.S.C., 1940 ed., Judi- cial Code and Judiciary (June 20, 1936, ch. 640, § 4, 49 Stat. 1563). § 3494. Certification of genuineness of foreign document If the consular officer executing any commis- sion authorized under section 3492 of this title shall be satisfied, upon all the testimony taken, that a foreign document is genuine, he shall cer- tify such document to be genuine under the seal of his office. Such certification shall include a statement that he is not subject to disqualifica- tion under the provisions of section 3492 of this title. He shall thereupon transmit, by mail, such foreign documents, together with the record of all testimony taken and the commission which has been executed, to the clerk of the court from which such commission issued, in the manner in which his official dispatches are transmitted to the Government. The clerk receiving any exe- cuted commission shall open it and shall make any foreign documents and record of testimony, transmitted with such commission, available for inspection by the parties to the criminal action or proceeding in which such documents are to be used, and said parties shall be furnished copies of such documents free of charge. (June 25, 1948, ch. 645, 62 Stat. 835.) HISTORICAL AND REVISION NOTES Based on section 695d of title 28, U.S.C., 1940 ed., Judi- cial Code and Judiciary (June 20, 1936, ch. 640, § 5, 49 Stat. 1563).