Case: 12-1236

Document: 00116494436

Page: 1

Date Filed: 02/19/2013

Entry ID: 5712540

UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

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No. 12-1236 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. TRUSTEES OF BOSTON COLLEGE, ET AL., Movants Appellants

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REPLY OF BOSTON COLLEGE TO GOVERNMENTS RESPONSE TO MOTION TO DISMISS APPEAL AS MOOT

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On January 28, 2013, Appellants Trustees of Boston College and two of its representatives, Robert K. ONeill, the Librarian of the John J. Burns Library at Boston College, and Boston College University Professor Thomas E. Hachey (collectively, Boston College), notified the Court pursuant to Fed. R. App. P. 43(a)(1) of the death of the Dolours Price. Because the subject of these proceedings, as identified in the caption of this case by the Commissioner who issued subpoenas to Boston College, is Dolours Price, Boston College moved that

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this Court dismiss this appeal as moot and vacate the District Courts January 20, 2012, Findings and Order that is the subject of this appeal. The Governments Response asserts two grounds for denial of Boston Colleges motion:

that the caption of these proceedings does not limit the information sought to evidence to prosecute Dolours Price, and

that a specific limitation in the treaty at issue in this appeal (the US-UK MLAT) is not applicable to the subpoenas that are the subject of this appeal.

Upon further consideration, Boston College does not contest the Governments position on the second ground, but does dispute the Governments position on the first ground, for the following reasons. ARGUMENT The August 2011 subpoenas to Boston College that are the subject of this appeal (the subpoenas) were issued in proceedings that the Commissioner captioned in criminal matters in the matter of Dolours Price. That caption is the only information Boston College has regarding the subject of the pending proceedings: criminal matters that relate to Dolours Price. Based on that information, when Boston College learned of the death of Dolours Price, it filed a suggestion of death pursuant to Fed. R. App. P. 43(a)(1). Because the only person

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whom the Commissioner identified as the subject of these proceedings was Dolours Price, and there could be no prosecution of her after her death, Boston College moved to vacate the District Courts order at issue in this appeal and to dismiss the appeal as moot. The Governments Response (at 6-8) incorrectly asserts that Boston College previously took an inconsistent position in this litigation because it did not object based on the fact that the subpoenas asked for any and all interviews containing information about the abduction and death of Mrs. Jean McConville. The Governments argument on this point fails to acknowledge the difference between the subject of the proceedings (from the caption, Dolours Price) and the scope of materials sought by the subpoenas issued in these proceedings (information about the McConville abduction and death). Boston College does not argue that the death of Dolours Price affects the scope of the materials the subpoenas seek. Instead, it contends that the death of Dolours Price moots the need for the information sought by the subpoenas. The Governments Response also asserts (at 8) that Boston College is mistaken in concluding, based on the caption the Commissioner himself gave these proceedings, that the criminal matters under investigation are limited to Dolours Price. The Government asserts that its ex parte filings identified subjects of the investigation other than Dolours Price. Boston College has no way to verify the

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accuracy of the Governments assertion, because it has been barred from access to the materials on which that assertion is based. Boston College therefore relies on this Court to determine, from the Courts own examination of the ex parte materials, whether those materials identify one or more other living individuals against whom criminal prosecution would still be possible, so that these proceedings are not in fact mooted by the death of Dolours Price. Conclusion Unless this Court can confirm from examination of ex parte filings by the Government that the subject of these proceedings is not just Dolours Price, but also individuals who are still alive and subject to possible criminal prosecution, this Court should vacate the District Courts January 20, 2012, Findings and Order and dismiss this appeal as moot. By their attorney, /s/ Jeffrey Swope Jeffrey Swope (BBO# 490760) Nicholas A. Soivilien (BBO #675757) EDWARDS WILDMAN PALMER LLP 111 Huntington Avenue Boston, Massachusetts 02199-7613 (617) 239-0100 jswope@edwardswildman.com Dated: February 20, 2013

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CERTIFICATE OF SERVICE I hereby certify that this document filed through the CM/ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) on February 20, 2013. /s/ Jeffrey Swope

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