Administrative Subpoenas

Through A.R.S. § 13-2315, the Arizona Legislature authorized the Attorney General to issue administrative subpoenas to obtain information from financial institutions “in order to investigate racketeering as defined by § 13-2301, subsection D, paragraph 4 or a violation of § 13-2312 [relating to racketeering conducted through a criminal enterprise].”   A.R.S. § 13-2315(A).  In the event of noncompliance, the Attorney General is authorized to petition the superior court for enforcement and the court is directed that “enforcement shall be granted if the request is reasonable and the attorney general . . . has reasonable grounds to believe the records sought to be inspected are relevant to a civil or criminal investigation of an offense included in the definition of racketeering in § 13-2301, subsection D, paragraph 4 or a violation of § 13-2312.”  A.R.S. § 13-2315(B).  Thus, under the statute, the information must be relevant to an investigation of racketeering, not relevant to a known act of racketeering.

The general rule of administrative subpoenas is broad application:

Because judicial power is reluctant if not unable to summon evidence until it is shown to be relevant to issues in litigation, it does not follow that an administrative agency charged with seeing that the laws are enforced may not have and exercise powers of original inquiry.  It has a power of inquisition, if one chooses to call it that, which is not derived from the judicial function.  It is more analogous to the Grand Jury, which does not depend on a case or controversy for power to get evidence but can investigate merely on suspicion that the law is being violated, or even just because it wants to assure itself that it is not.

 

United States v. Morton Salt Co., 338 U.S. 632, 642-43 (1950).  Administrative subpoenas differ from discovery, so the cases that WU cites that do not involve administrative subpoenas, such as Northwest Memorial Hosp. v. Ashcroft, 362 F.3d 923 (7th Cir. 2004) (applying Fed.R.Civ.P. 45(c)) and Dart Industries Co. v. Westwood Chemical Co., 649 F.2d 646 (9th Cir. 1980) (cited for a proposition it does not support), do not apply here.

To qualify as “racketeering,” and thereby meet that element of A.R.S. § 13-2315, conduct must “chargeable or indictable” in Arizona and described in § 13-2301(D)(4) (defining “racketeering” and listing qualifying conduct).   The list includes money laundering (A.R.S. § 13-2301(D)(4)(b)(xxvi), illegal drug trafficking, (id. (xi)), and human smuggling, (id. (xxx)).  This definition specifically includes preparatory offenses such as conspiracy.  A.R.S. § 13-2301(D)(4) (“Racketeering” means any act, including any preparatory or completed offense  . . .”).

Conduct is chargeable or indictable in Arizona if it meets the requirements of A.R.S. § 13-108, which provides, in pertinent part:

This state has territorial jurisdiction over an offense that a person commits by his own conduct or the conduct of another for which such person is legally accountable if:

  1. Conduct constituting any element of the offense or a result of such conduct occurs within this state; or
  2. The conduct outside this state constitutes an attempt or conspiracy to commit an offense within this state and an act in furtherance of the attempt or conspiracy occurs within this state;

 

Pursuant to A.R.S. § 13-108, a conspiracy to engage in money laundering, drug or human smuggling, or a conspiracy to conduct a criminal enterprise, that includes acts in furtherance of that conspiracy in Arizona may be charged or indicted in Arizona, including acts in furtherance of the conspiracy that occurred in Sonora.  State v. Willoughby, 181 Ariz. 530, 541, 892 P.2d 1319, 1330 (1995); State v. Chan, 188 Ariz. 272, 274-75, 935 P.2d 850, 853-53 (App. 1996).  Thus, the Attorney General has authority to investigate conspiracies to engage in money laundering in furtherance of human and drug smuggling or to conduct a criminal enterprise through those crimes in which one or more acts in furtherance of the conspiracy occur in Arizona.

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s


%d bloggers like this: