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In re Grand Jury Subpoenas Returnable

United States Court of Appeals, Second Circuit

September 8, 2017

In re Grand Jury Subpoenas Returnable

          Argued: February 13, 2017

         Appeal from the United States District Court for the Eastern District of New York. No. 15-mc-2346 - John Gleeson, District Judge.

         A Chinese construction company (the Company) and seven of its employees (collectively, Appellants) appeal from an order of the United States District Court for the Eastern District of New York (Gleeson, J.) denying their motion to quash subpoenas requiring the employees to appear before a grand jury. Appellants argue that the district court erred in concluding that the employees are not entitled to diplomatic immunity because they were not registered with the United States Department of State. Appellants further contend that, even if the employees were required to register, that requirement was satisfied when the employees applied for their visas. Because we conclude that the 2009 Bilateral Agreement between the United States and the People's Republic of China (PRC) incorporates a 2003 Diplomatic Note that imposes a registration requirement on construction personnel, which was not fulfilled here, we AFFIRM the order of the district court.

          Harold J. Ruvoldt, Jr. (Cathy A. Fleming & Eric H. Jaso on the brief), Fleming Ruvoldt PLLC, New York, NY, for Appellant.

          Alexander A. Solomon, Assistant United States Attorney (Amy Busa, Douglas M. Pravda & Ian Craig Richardson, Assistant United States Attorneys, on the brief), for Bridget M. Rohde, Acting United States Attorney for the Eastern District of New York, for Appellee.

          Before: Walker, Livingston, Circuit Judges, and Briccetti, District Judge. [*]

          John M. Walker, Jr., Circuit Judge:

         A Chinese construction company (the Company) and seven of its employees (collectively, Appellants) appeal from an order of the United States District Court for the Eastern District of New York (Gleeson, J.) denying their motion to quash subpoenas requiring the employees to appear before a grand jury. Appellants argue that the district court erred in concluding that the employees are not entitled to diplomatic immunity because they were not registered with the United States Department of State. Appellants further contend that, even if the employees were required to register, that requirement was satisfied when the employees applied for their visas. Because we conclude that the 2009 Bilateral Agreement between the United States and the People's Republic of China (PRC) incorporates a 2003 Diplomatic Note that imposes a registration requirement on construction personnel, which was not fulfilled here, we AFFIRM the order of the district court.

         BACKGROUND

         Because this matter relates to a grand jury investigation, we provide an abbreviated version of the facts and only discuss information that will not compromise the integrity of the underlying grand jury investigation.[1] The Company was selected by the PRC to provide construction and related services for Chinese diplomatic and consular missions to the United States pursuant to a 2009 Bilateral Agreement between the United States and the PRC (Bilateral Agreement). Under this agreement, the Company brings Chinese nationals into the United States to work on its projects. The Bilateral Agreement provides for qualified individuals to enter the United States pursuant to A-2 or other appropriate visas issued by the Department of State.

         Seven employees of the Company, construction personnel who were attached to a PRC mission, entered the United States on A-2 and G-2 visas. When these employees were later served with subpoenas requiring them to appear before a grand jury in the U.S. District Court for the Eastern District of New York, Appellants moved, pursuant to 22 U.S.C. § 254(d), to quash these subpoenas on the basis that the employees are entitled to diplomatic immunity. The district court denied that motion and this timely appeal followed.

         DISCUSSION

         We must resolve whether, in order to receive diplomatic immunity, the employees were required to register with the State Department upon being attached to a PRC mission and, if so, whether the employees' visa applications constituted such registration. Appellants argue that they are entitled to diplomatic immunity because: (1) the Bilateral Agreement does not impose a registration requirement as a pre-condition to receiving immunity and (2) even if the Bilateral Agreement contains such a requirement, the employees fulfilled it by providing the information required to secure their visas.

         We review a district court's denial of a motion to quash a grand jury subpoena for abuse of discretion, see In re Edelman, 295 F.3d 171, 173, 175 (2d Cir. 2002), but its interpretation of the terms of a treaty or a diplomatic agreement de novo, see Swarna v. Al-Awadi, 622 F.3d 123, 132 (2d Cir. 2010).

         I. The VCDR, Diplomatic Note, ...


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