In re Grand Jury Subpoenas Returnable December 16, 2015
871 F.3d 141
2d Cir.2017Background
- A Chinese construction company and seven employees (construction personnel) worked on PRC diplomatic/consular sites in the U.S. under a 2009 U.S.–PRC Bilateral Agreement; the workers entered on A-2 or G-2 visas and were described as attached to the PRC mission as administrative/technical staff.
- Federal grand jury subpoenas required the seven employees to appear; they moved to quash under 22 U.S.C. § 254(d) asserting diplomatic immunity.
- The district court denied the motion to quash; the company and employees appealed, challenging the court’s conclusion that they lacked diplomatic immunity because they were not registered with the U.S. Department of State.
- The dispute centers on three instruments: the Vienna Convention on Diplomatic Relations (VCDR), a 2003 U.S. State Department Diplomatic Note reminding missions to notify the Department of arrivals/appointments, and the 2009 Bilateral Agreement which grants construction personnel VCDR privileges and incorporates "relevant diplomatic notes" for matters not addressed.
- The State Department certified that the employees were not registered (or registration had been terminated) in the Office of Foreign Missions records; the district court and the Second Circuit deferred to that certification.
Issues
| Issue | Appellants' Argument | Government's Argument | Held |
|---|---|---|---|
| Whether construction personnel must be registered with State Dept. to receive immunity | The Bilateral Agreement and Diplomatic Note do not make immunity conditional on registration | Diplomatic Note and VCDR require notification/registration as a precondition to entitlement; registration is essential to VCDR’s purpose | Registration is a precondition for immunity for construction personnel |
| Whether the 2003 Diplomatic Note applies to construction personnel | Note does not apply to construction personnel and cannot unilaterally alter the Bilateral Agreement | Construction personnel are "administrative and technical staff" under VCDR; Bilateral Agreement incorporates relevant diplomatic notes | The Diplomatic Note applies; construction personnel fall within its scope |
| Whether the Bilateral Agreement incorporates the Diplomatic Note (or improperly modified by it) | The Note would impermissibly and unilaterally amend the bilateral treaty; Section 16.2 requires mutual agreement for amendments | Bilateral Agreement expressly incorporates relevant diplomatic notes for issues not addressed; incorporation does not amend but supplies governing guidance | The Bilateral Agreement incorporates the Diplomatic Note for matters not addressed, including registration |
| Whether visa applications satisfied the registration requirement | Visa applications (A-2/G-2) supplied sufficient information to constitute registration | Visas can be issued to persons without privileges; only formal State Dept. registration suffices; State Dept. certified no registration | Visa applications did not satisfy registration; State Dept. certification that employees were not registered is controlling |
Key Cases Cited
- In re Edelman, 295 F.3d 171 (2d Cir. 2002) (standard of review for denial of motion to quash grand jury subpoena)
- Swarna v. Al-Awadi, 622 F.3d 123 (2d Cir. 2010) (treaty interpretation reviewed de novo and Executive Branch interpretations given weight)
- Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176 (Supreme Court 1982) (clear import of treaty language controls absent contrary intent)
- In re Air Crash at Belle Harbor, 490 F.3d 99 (2d Cir. 2007) (collateral order doctrine requirements for interlocutory appeals)
- United States v. Kostadinov, 734 F.2d 905 (2d Cir. 1984) (recognizing validity of unilateral diplomatic notes affecting mission personnel practices)
- In re Baiz, 135 U.S. 403 (Supreme Court 1890) (Secretary of State certification on diplomatic status is conclusive evidence)