(1) Upon an individual other than an infant or an incompetent person, by delivering a copy of the summons and of the complaint to him personally or by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process.

(2) Upon an infant or an incompetent person, by serving the summons and complaint in the manner prescribed by the law of the State in which the service is made for the service of summons or other like process upon any such defendant in an action brought in the courts of general jurisdiction of that State.

(3) Upon a domestic or foreign corporation or upon a partnership or other unincorporated association which is subject to suit under a common name, by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant.

(4) Upon the United States, by delivering a copy of the summons and of the complaint to the United States attorney for the district in which the action is brought or to an assistant United States attorney or clerical employee designated by the United States attorney in a writing filed with the clerk of the court and by sending a copy of the summons and of the complaint by registered or certified mail to the Attorney General of the United States at Washington, District of Columbia, and in any action attacking the validity of an order of an officer or agency of the United States not made a party, by also sending a copy of the summons and of the complaint by registered or certified mail to such officer or agency.

(7) Upon a defendant of any class referred to in paragraph (1) or (3) of this subdivision of this rule, it is also sufficient if the summons and complaint are served in the manner prescribed by any statute of the United States or in the manner prescribed by the law of the State in which the district court is held for the service of summons or other like process upon any such defendant in an action brought in the courts of general jurisdiction of that State.

As amended Jan. 21, 1963, eff. July 1, 1963.

(g) Return. The person serving the process shall make proof of service thereof to the court promptly and in any event within the time during which the person served must respond to the process. If service is made by a person other than a United States marshal or his deputy, he shall make affidavit thereof. Failure to make proof of service does not affect the validity of the service.

Enclosure 2

TITLE 28, UNITED STATES CODE

§ 1782. Assistance to foreign and international tribunals and to litigants before such tribunals.

(a) The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court. By virtue of his appointment, the person appointed has power to administer any necessary oath and take the testimony or statement. The order may prescribe the practice and procedure, which may be in whole or part the practice and procedure of the foreign country or the international tribunal, for taking the testimony or statement or producing the document or other thing. To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure.

A person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege.

(b) This chapter does not preclude a person within the United States from voluntarily giving his testimony or statement, or producing a document or other thing, for use in a proceeding in a foreign or international tribunal before any person

and in any manner acceptable to him. (June 25, 1948, ch. 646, 62 Stat 949; May 24, 1949, ch. 139, § 93, 63 Stat. 103; Oct. 3, 1964, Pub. L. 88-619, § 9(a), 78 Stat. 997.) Dept. of State File No. P76 0014-1925.

Bilateral Agreements

U.S.-Switzerland Treaty

On July 27, 1976, the United States and Switzerland exchanged instruments of ratification of the Treaty between the two countries on Mutual Assistance in Criminal Matters, signed on May 25, 1973 (TIAS 8302; 27 UST 2179). The treaty came into force 180 days later, namely on January 23, 1977. In transmitting the treaty to the Senate for advice and consent to ratification on February 18, 1976, President Ford described it as follows:

The treaty is the first major international agreement by the United States aimed at obtaining information and evidence needed for criminal investigations and prosecutions. Cooperation of this kind with Switzerland is uniquely important because of its position as an international financial center. Despite the general cooperation of Swiss authorities in criminal cases, the procedures for obtaining needed information have been generally ponderous and inadequate. Despite this cooperation, United States law enforcement and investigative agencies have frequently encountered severe difficulties in obtaining needed information from Swiss banks because of banking secrecy laws.

The new treaty, as implemented by Swiss legislation, should open up new avenues of cooperation in Switzerland and greatly facilitate the work of the United States law enforcement and prosecutive agencies, especially in dealing with cases involving organized crime. Assistance will extend to ascertaining the whereabouts of persons. taking testimony, producing and preserving judicial and other documents, records and evidence, and serving and authenticating judicial and administrative documents.

*

An accompanying report by the Department of State described the assistance to be provided under the treaty as including special assistance where organized crime is involved, as well as regular assistance in locating witnesses, obtaining statements and testimony of witnesses, production and authentication of business records, and service of judicial or administrative documents. It adds the following explanation:

Several provisions of the treaty deal with the Swiss concept of banking secrecy. The negotiators gave careful attention to how

Swiss bank information could be made available to, and used by, the United States in connection with serious crimes here. When the conditions of the treaty have been met, bank secrecy is no bar to assistance.

The treaty is limited to providing to each country additional evidence and information for its use in investigating or prosecuting crimes established by its domestic law. It establishes no new crimes. Its object is to assist in overcoming the problems presented in obtaining information or evidence concerning activities taking place outside of a country in furtherance of crimes committed in violation of the laws of that country. Requests for assistance would be made through the respective Departments of Justice and will require execution by appropriate authorities in the two countries.

The Swiss Federal Council has approved the treaty along with proposed Federal legislation to implement it and submitted both to the Parliament. On January 13, 1976, Parliamentary approval of this treaty was completed.

No implementing legislation by the United States appears to be necessary. The United States would normally utilize Federal courts and agencies to carry out the treaty's substantive obligations. In several respects, however, the treaty would create new substantive or procedural law for the United States. . . .

The Department's report gives several examples of the types of new law that would be created. Included is an anticipated expansion of assistance in certain ancillary administrative proceedings affecting such procedures as disbarment of an attorney or revocation of a driver's license, both sanctions resulting from conduct constituting an offense within the purview of the treaty. An additional exception to the Freedom of Information Act, 5 U.S.Č. 552, is seen in the treaty provision concerning withholding from public disclosure of information provided by the Swiss Government which is subject to banking or business secrecy requirements in Switzerland. The report states: "The treaty creates a limitation by force of law subject only to constitutional requirements, specifically, our constitutional requirement that the public be permitted access in public trial."

Another provision of the treaty creates a legal privilege against compulsion of testimony in United States courts if the person in question has a right to refuse to testify under Swiss law, or, under certain limited circumstances, if the information is protected by banking or business secrecy requirements in Switzerland.

The treaty states that its provisions shall take precedence over any inconsistent provisions of the municipal laws in either the United States or Switzerland, but other provisions specifically recognize the applicability of municipal law in certain limited situations.

For the President's message of transmittal of the U.S.-Switzerland treaty to the Senate, the Dept. of State report on the treaty, a technical analysis of the treaty provisions, as well as the text of the treaty and related exchanges of notes, see S. Ex. F, 94th Cong., 2d Sess.

U.S.-Japan Agreement on Lockheed Matter

On March 23, 1976, the U.S. Department of Justice and the Ministry of Justice of Japan signed an agreement on procedures for mutual assistance in the administration of justice in connection with the Lockheed Aircraft Corporation matter (TIAS 8233; 27 UST 946; entered into force March 23, 1976). The Lockheed matter involved alleged illicit acts pertaining to sales activities abroad of Lockheed and its subsidiaries and affiliates. The agreement provides for exchange of information between the law enforcement agencies of the two countries under conditions intended to protect the integrity of ongoing U.S. investigations and the rights of the individuals involved. The substantive provisions of the agreement follow:

Procedures for Mutual Assistance in Administration of Justice in Connection With the Lockheed Aircraft Corporation Matter The United States Department of Justice and the Ministry of Justice of Japan, hereinafter referred to as "the parties," confirm the following procedures in regard to mutual assistance to be rendered to agencies with law enforcement responsibilities in their respective countries with respect to alleged illicit acts pertaining to the sales activities in Japan of the Lockheed Aircraft Corporation and its subsidiaries or affiliates.

1. All requests for assistance shall be communicated directly between the parties.

2. Upon request, the parties shall use their best efforts to make available to each other relevant and material information, such as statements, depositions, documents, business records, correspondence or other materials, available to them concerning alleged illicit acts pertaining to the sales activities in Japan of the Lockheed Aircraft Corporation and its subsidiaries or affiliates.

3. Such information shall be used exclusively for purposes of investigation conducted by agencies with law enforcement responsibilities and in ensuing legal proceedings, criminal, civil and administrative.

4. Except as provided in paragraph 5, all such information made available by the parties pursuant to these procedures, and all correspondence between the parties relating to such information and to the implementation of these procedures, shall be kept confidential and shall not be disclosed to third parties or to government agencies having no law enforcement responsibilities. Disclosure to other agencies having law enforcement responsibilities shall be conditioned on the recipient agency's acceptance of the terms set forth herein.

In the event of breach of confidentiality, the other party may discontinue cooperation under these procedures.

5. Information made available pursuant to these procedures may be used freely in ensuing legal proceedings, criminal, civil and administrative, in the requesting state in which an agency of the requesting state having law enforcement responsibilities is a party, and the parties shall use their best efforts to furnish the information for purposes of such legal proceedings in such form as

to render it admissible pursuant to the rules of evidence in existence in the requesting state, including, but not limited to, certifications, authentications, and such other assistance as may be necessary to provide the foundation for the admissibility of evidence.

6. The parties shall give advance notice prior to the institution of legal proceedings, criminal, civil and administrative, in which information made available pursuant to these procedures is intended to be used.

7. The parties shall use their best efforts to assist in the expeditious execution of letters rogatory issued by the judicial authorities of their respective countries in connection with legal proceedings, criminal, civil and administrative, which may ensue in their respective countries.

8. The assistance to be rendered to a requesting state shall not be required to extend to such acts by the authorities of the requested state as might result in the immunization of any person from prosecution in the requested state.

9. All actions to be taken by a requested state will be performed subject to all limitations imposed by its domestic law. Execution of a request for assistance may be postponed or denied if execution would interfere with ongoing investigations or legal proceedings, criminal, civil and administrative, in the requested state.

10. Nothing contained herein shall limit the rights of the parties to utilize for any purpose information which is obtained by the parties independent of these procedures.

11. The mutual assistance to be rendered by the parties pursuant to these procedures is designed solely for the benefit of their respective agencies having law enforcement responsibilities and is not intended or designed to benefit third parties, or to affect the admissibility of evidence under the laws of either the United States or Japan.

In a memorandum dated March 19, 1976, Elizabeth G. Verville, Assistant Legal Adviser for East Asian and Pacific Affairs, stated, in part:

Authority for participation in arrangements for cooperation and exchange of law enforcement information between the Department of Justice and other governments derives from both the President's foreign relations power under article II, section 2 of the Constitution, and the statutory authority of the Attorney General, 28 U.S.C. 516 and 517. Section 516 provides that "the conduct of litigation in which the United States, an agency, or officer thereof is a party, or is interested, is reserved to officers of the Department of Justice under the direction of the Attorney General." Section 517 authorizes the Attorney General to send any officer of the Department of Justice "to attend to the interests of the United States in a suit pending in a court of the United States . . . or to attend to any other interests of the United States." Entering into cooperative arrangements with appropriate agencies of foreign governments for the exchange of law enforcement information and