Pangang Group Company, Ltd. v. Usdc-Caoak ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IN RE PANGANG GROUP No. 17-72370
COMPANY, LTD.; PANGANG
GROUP STEEL VANADIUM & D.C. No.
TITANIUM COMPANY, LTD.; 4:11-cr-00573-JSW
PANGANG GROUP TITANIUM
INDUSTRY COMPANY, LTD.;
PANGANG GROUP OPINION
INTERNATIONAL ECONOMIC &
TRADING COMPANY,
PANGANG GROUP COMPANY,
LTD.; PANGANG GROUP STEEL
VANADIUM & TITANIUM
COMPANY, LTD.; PANGANG
GROUP TITANIUM INDUSTRY
COMPANY, LTD.; PANGANG
GROUP INTERNATIONAL
ECONOMIC & TRADING
COMPANY,
Petitioners,
v.
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF
CALIFORNIA, OAKLAND,
Respondent,
2 IN RE PANGANG GROUP CO., LTD.
UNITED STATES OF AMERICA,
Real Party in Interest.
Petition For Writ Of Mandamus
Argued and Submitted June 13, 2018
San Francisco, California
Filed August 22, 2018
Before: Michael R. Murphy,* Richard A. Paez,
and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta
*
The Honorable Michael R. Murphy, United States Circuit Judge for
the U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
IN RE PANGANG GROUP CO., LTD. 3
SUMMARY**
Mandamus / Fed. R. Crim. P. 4(c)(3)(D)
The panel denied a petition for a writ of mandamus,
brought by companies owned and controlled by the Chinese
government, asking this court to vacate the district court’s
order denying their motion to quash service of criminal
summonses the government had delivered to attorneys for the
companies.
The companies argued that the delivery of the summonses
did not effect service on them under Fed. R. Crim. P.
4(c)(3)(D). The panel held that where such delivery provides
actual notice to a foreign organization, it satisfies Rule 4.
The panel concluded that because the evidence established
that the companies had actual notice of the summonses, the
district court did not err, let alone clearly err, in denying their
motion to quash service. The panel therefore denied the
petition for a writ of mandamus.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 IN RE PANGANG GROUP CO., LTD.
COUNSEL
Kathleen M. Sullivan (argued) and William B. Adams, Quinn
Emmanuel Urquhart & Sullivan LLP, New York, New York;
Robert P. Feldman and Andrew P. March, Quinn Emmanuel
Urquhart & Sullivan LLP, Redwood Shores, California; for
Petitioners.
Merry Jean Chan (argued), Assistant United States Attorney;
J. Douglas Wilson, Chief, Appellate Division; United States
Attorney’s Office, San Francisco, California; for Real Party
in Interest.
OPINION
IKUTA, Circuit Judge:
After the government delivered criminal summonses to
attorneys for the Pangang Group Company, Ltd. and its
subsidiaries Pangang Group Titanium Industry Company,
Pangang Group Steel Vanadium & Titanium Company, Ltd.,
and Pangang Group International Economic & Trading
Company (collectively, the “Pangang Companies”), the
attorneys made a special appearance on behalf of their clients
to quash service of the summonses. The district court denied
their motion. The Pangang Companies petition for a writ of
mandamus directing the district court to vacate its order,
arguing that the delivery of the summonses did not effect
service on the Pangang Companies under Rule 4(c)(3)(D) of
the Federal Rules of Criminal Procedure (which we refer to
as the Criminal Rules). We conclude that where such
delivery provides actual notice to a foreign organization, it
satisfies Criminal Rule 4. Because the evidence established
IN RE PANGANG GROUP CO., LTD. 5
that the Pangang Companies had actual notice of the
summonses, the district court did not err, let alone clearly err,
in denying the Pangang Companies’ motion to quash.
Therefore, we deny the petition.
I
This petition requires us to review the intertwined history
of the 2016 amendments to Criminal Rule 4 and the
government’s repeated attempts at service on the Pangang
Companies.
A
On February 7, 2012, the government indicted the
Pangang Companies on charges of conspiracy to commit
economic espionage, in violation of 18 U.S.C. § 1831(a)(5),
and attempted economic espionage, in violation of 18 U.S.C.
§ 1831(a)(3) and (4). The Pangang Companies are
enterprises owned and controlled by the Chinese government.
According to the indictment, the Pangang Companies
conspired with individuals to illegally obtain trade secrets
from E.I. du Pont de Nemours & Company related to
chloride-route titanium dioxide production technology.1
1
The cases against all but one of the Pangang Companies’ co-
defendants have been resolved. Two defendants, Tze Chao and Christina
Liew, pleaded guilty to their respective charges. A U.S. company,
USAPTI, and two other defendants, Walter Liew and Robert Maegerle,
were convicted by a jury. See United States v. Liew, 856 F.3d 585, 593,
595 (9th Cir. 2017). Maegerle did not appeal. We affirmed USAPTI’s
and Liew’s economic espionage convictions. See id. at 593, 603. The
case against Hou Shengdong, a Chinese national, remains pending.
6 IN RE PANGANG GROUP CO., LTD.
A federal magistrate judge issued summonses to each of
the Pangang Companies. The government served the
summonses at the New Jersey office of a U.S. subsidiary of
one of the Pangang Companies, Pan America, Inc., and
mailed copies to the same location. At the time, the
government attempted service pursuant to the 2011 version of
Criminal Rule 4, which provides the process for issuing and
executing an arrest warrant or summons to a defendant if a
criminal complaint establishes probable cause to believe that
an offense has been committed and that the defendant
committed it. Fed. R. Crim. P. 4(a). A summons “require[s]
the defendant to appear before a magistrate judge at a stated
time and place.” Fed. R. Crim. P. 4(b)(2). The 2011 version
of Criminal Rule 4 provided that a summons is served on an
organization “by delivering a copy to an officer, to a
managing or general agent, or to another agent appointed or
legally authorized to receive service of process.” Fed. R.
Crim. P. 4(c)(3)(C) (2011). A copy must also “be mailed to
the organization’s last known address within the district or to
its principal place of business elsewhere in the United States.”
Id.2
On March 29, 2012, the Pangang Companies made a
special appearance in district court through two attorneys
from Quinn Emanuel Urquhart & Sullivan, LLP (the “Quinn
2
The 2011 version of Criminal Rule 4(c)(3)(C) provided in full:
A summons is served on an organization by delivering
a copy to an officer, to a managing or general agent, or
to another agent appointed or legally authorized to
receive service of process. A copy must also be mailed
to the organization’s last known address within the
district or to its principal place of business elsewhere in
the United States.
IN RE PANGANG GROUP CO., LTD. 7
Emanuel attorneys”), and filed a motion to quash service of
the summonses on the grounds that service on Pan America
was defective under Criminal Rule 4. On July 23, 2012, the
district court granted the motion, reasoning that service had
not complied with the delivery requirement of Criminal Rule
4 for three of the Pangang Companies, and had not satisfied
the mailing requirement as to all four Pangang Companies,
see Fed. R. Crim. P. 4(c)(3)(C) (2011).
Between August 2012 and November 2012, the
government attempted to serve the Pangang Companies by
mailing and delivering the summonses to various individuals
and addresses within the United States that were associated
with the Pangang Companies. In addition, the Department of
Justice (DOJ) formally requested that an agency of the
Chinese government serve the Pangang Companies. The
Chinese government refused.
On February 7, 2013, the Pangang Companies made a
second special appearance in district court through the Quinn
Emanuel attorneys, and filed another motion to quash. The
district court granted the motion, holding that none of the
agents and addresses bore the requisite connection to the
Pangang Companies required under Criminal Rule 4(c)(3)(C).
The government asked the district court to reconsider its
rulings, arguing that the service of the summonses had
substantially complied with Criminal Rule 4. The court
denied the government’s motion.
B
While the government was struggling to serve the
Pangang Companies, the DOJ asked the Advisory Committee
on the Criminal Rules to make changes to Criminal Rule 4.
8 IN RE PANGANG GROUP CO., LTD.
For those unfamiliar with the rulemaking process, we provide
a brief overview. The Rules Enabling Act of 1934, 28 U.S.C.
§§ 2071–2077, authorized the Supreme Court to promulgate
rules of procedure which have the force and effect of law.
The work of formulating and revising such rules has been
delegated to the Judicial Conference of the United States (the
principal policy-making body of the U.S. Courts). Id. § 2073.
The Judicial Conference formed a Committee on Rules of
Practice and Procedure (referred to as the Standing
Committee) and five advisory rules committees, the Advisory
Committees on Appellate, Bankruptcy, Civil, Criminal, and
Evidence Rules. See id. § 2073(a)(2), (b). By statute, the
meetings of each Advisory Committee are generally open to
the public, and minutes of each meeting are maintained by the
committee and made available to the public. Id. § 2073(c)(1).
The rulemaking process proceeds as follows. After
evaluating proposals for new rules or amendments to existing
rules, an Advisory Committee may recommend a proposed
change to the Standing Committee. See id. § 2073(b). If the
Standing Committee approves the proposal, the Advisory
Committee notifies the public regarding the proposed rule or
amendment and solicits public comment. See Procedures for
the Judicial Conference’s Committee on Rules of Practice and
Procedure and Its Advisory Rules Committees, § 440.20.40
(2011).3 After evaluating and responding to such comments,
the Advisory Committee may recommend a final rule or
amendment to the Standing Committee. See id. § 440.20.50.
The Standing Committee then makes an independent
recommendation to the Judicial Conference, see id.
§§ 440.30.10(d), 440.30.20(d), which in turn recommends the
3
http://www.uscourts.gov/rules-policies/about-rulemaking-
process/laws-and-procedures-governing-work-rules-committees-0.
IN RE PANGANG GROUP CO., LTD. 9
proposed changes to the Supreme Court. If the Supreme
Court approves the proposal, it will promulgate the revised
rules to take effect on December 1 of the same year unless
Congress enacts legislation to the contrary. See 28 U.S.C.
§ 2074.
The DOJ asked the Advisory Committee to amend
Criminal Rule 4 to allow service on an organization outside
of the United States either by serving the organization under
the laws of the foreign jurisdiction or through a non-
exhaustive list of other means of service. Letter from Lanny
A. Breuer, Assistant Attorney General, Dep’t of Justice, to
Judge Reena Raggi, Chair of Advisory Comm. on Criminal
Rules (Oct. 25, 2012).4 The Advisory Committee developed
a revised version of the proposal. Advisory Comm. on
Criminal Rules, May 2014 Report to Standing Committee, at
2, 6 (May 5, 2014), [hereinafter Initial Advisory Committee
Report].5 In its report to the Standing Committee, the
Advisory Committee proposed three amendments to Criminal
Rule 4. Id. at 2. First, it proposed adding the following
sentence to the end of Criminal Rule 4(a): “If an
organizational defendant fails to appear in response to a
summons, a judge may take any action authorized by law.”
Id. at 3. Second, it proposed eliminating the requirement that
a summons be separately mailed to an organizational
defendant within the United States, except in cases where
service is “made on a statutorily appointed agent when the
statute itself requires a mailing as well as personal service.”
4
http://www.uscourts.gov/sites/default/files/fr_import/12-CR-B-
Suggestion-Breuer.pdf.
5
http://www.uscourts.gov/sites/default/files/fr_import/CR05-
2014.pdf.
10 IN RE PANGANG GROUP CO., LTD.
Id. Finally, it proposed adding a new subdivision (D) to
Criminal Rule 4(c)(3), which would authorize serving a
summons on an organization not within a judicial district of
the United States by (1) delivery on an appropriate individual
in compliance with the foreign jurisdiction’s law; or (2) “any
other means that gives notice,” including by a method
stipulated by the parties, undertaken by a foreign authority in
response to a formal request, or “permitted by applicable
international agreement.” Id. at 4–5.
The Standing Committee approved the Advisory
Committee’s recommendation to publish the proposed
amendments for public comment. Comm. on Rules of
Practice and Procedure, September 2014 Report to the
Judicial Conference, at 18–19 (Sept. 1, 2014)6; see also
Comm. on Rules of Practice and Procedure, Preliminary Draft
of Proposed Amendments to the Federal Rules of Criminal
Procedure, at 333–34 (Aug. 14, 2014).7
The Advisory Committee received six public comments
on its proposal, including a comment letter from the Quinn
Emanuel attorneys who had previously represented the
Pangang Companies in their special appearances in 2012 and
2013. Advisory Comm. on Criminal Rules, March 2015
6
http://www.uscourts.gov/sites/default/files/fr_import/ST09-
2014.pdf. The Quinn Emanuel attorneys continued to represent the
Pangang Companies at the time the comment letter was submitted in
February 2015, as evidenced by the statement in the opening paragraph of
the letter, “[a]mong our clients are the Pangang Group Companies and
affiliated entities.” Quinn Emanuel Comment Letter, infra, at 1.
7
https://www.regulations.gov/document?D=USC-RULES-CR-2014-
0004-0001.
IN RE PANGANG GROUP CO., LTD. 11
Agenda Book, at 71 (Mar. 16–17, 2015).8 As explained in
more detail below, the Quinn Emanuel attorneys contended
that allowing service on an organization to be effected “by
any other means that gives notice” would result in a range of
evils. Robert P. Feldman & John M. Potter, Comment Letter
on Proposed Amendment to Federal Rule of Criminal
Procedure 4, at 1 (Feb. 13, 2015) [hereinafter Quinn Emanuel
Comment Letter].9 Among other things, it would allow the
government to serve a summons by informal means such as
“simply by sending a letter or an email,” which would
“render superfluous the limitations imposed in the other
subsections.” Id. at 2. It would also “insulate service from
judicial review” by effectively eliminating special
appearances. Id. at 1–2. In response to the Quinn Emanuel
letter, the DOJ submitted a comment letter arguing that the
evils identified by Quinn Emanuel were features, not flaws,
of the proposed amendment; indeed, the point of the
amendment was to ensure that “[i]f the defendant corporation
has notice of a summons, it ought to be considered served.”
Letter from Jonathan Wroblewski, Dir., Office of Policy and
Legislation, Dep’t of Justice, to Judge David M. Lawson,
Chair of Subcomm. on Rule 4, at 2 (Feb. 20, 2015).10 While
an organizational defendant could still make special
appearances to contest other threshold issues, the DOJ stated,
“[w]hen a party makes a special appearance, any facts that a
8
http://www.uscourts.gov/sites/default/files/fr_import/CR2015-
05.pdf.
9
https://www.regulations.gov/document?D=USC-RULES-CR-2014-
0004-0028.
10
Available at Advisory Comm. on Criminal Rules, May
2015 Agenda Book, at 74 (Mar. 16–17, 2015),
http://www.uscourts.gov/sites/default/files/fr_import/CR2015-05.pdf.
12 IN RE PANGANG GROUP CO., LTD.
court learns as a result of that appearance, including that a
party has received actual notice of the prosecution, may be
considered by the court.” Id. at 74–75. According to the
DOJ, “feigning ignorance of a criminal summons of which
the foreign organization does have notice (either by declining
to appear, or by appearing and denying knowledge) is not a
legitimate interest the criminal rules should protect.” Id. at
75.
After considering the comments, the Advisory Committee
approved the amendments to Criminal Rule 4 as published.
In its report to the Standing Committee, the Advisory
Committee discussed at some length “the open-ended
provision in (c)(3)(D)(ii) that allows service ‘by any other
means that gives notice,’” and explained that this language
“provides flexibility for cases in which the Department of
Justice concludes that service cannot be made (or made
without undue difficulty) by the enumerated means.”
Advisory Comm. on Criminal Rules, May 2015 Report to
Standing Committee, at 3 (May 6, 2015) [hereinafter Final
Advisory Committee Report].11 Therefore, the Advisory
Committee chose not to require the government “to show
other options were not feasible or had been exhausted before
resorting to certain options for service.” Id. at 7. The
Advisory Committee report also directly addressed and
rejected Quinn Emanuel’s comments. Id. at 5–7. The
Advisory Committee recommended that the Standing
Committee adopt the amendments to Criminal Rule 4 as
published. Id. at 5.
11
http://www.uscourts.gov/sites/default/files/2015-05-
criminal_rules_report_0.pdf.
IN RE PANGANG GROUP CO., LTD. 13
The Standing Committee did so, and transmitted them to
the Judicial Conference. Comm. on Rules of Practice and
Procedure, September 2015 Report to the Judicial
Conference, at 2, 23–25 (Sept. 1, 2015).12 After approval by
the Judicial Conference, the Supreme Court promulgated the
amendments to Criminal Rule 4 and transmitted them to
Congress on April 28, 2016. The transmittal instructed that
the amendments “shall take effect on December 1, 2016, and
shall govern in all proceedings in criminal cases thereafter
commenced and, insofar as just and practicable, all
proceedings then pending.”13 Congress did not stop the rule
from going forward.
C
The amendments to Criminal Rule 4 took effect
December 1, 2016. The new subdivision, Criminal Rule
4(c)(3)(D), provides in full:
(D) A summons is served on an organization
not within a judicial district of the United
States:
(i) by delivering a copy, in a manner
authorized by the foreign jurisdiction’s
law, to an officer, to a managing or
general agent, or to an agent appointed or
12
http://www.uscourts.gov/sites/default/files/st09-2015_0.pdf.
13
This is the standard language that accompanies most amendments
to the Federal Rules of Criminal Procedure. See United States v. Woods,
399 F.3d 1144, 1147 (9th Cir. 2005).
14 IN RE PANGANG GROUP CO., LTD.
legally authorized to receive service of
process; or
(ii) by any other means that gives notice,
including one that is:
(a) stipulated by the parties;
(b) undertaken by a foreign authority
in response to a letter rogatory, a letter
of request, or a request submitted
under an applicable international
agreement; or
(c) permitted by an applicable
international agreement.
Fed. R. Crim. P. 4(c)(3)(D). The Committee Note
accompanying the amendment explains that subdivision
(c)(3)(D) “states that a criminal summons may be served on
an organizational defendant outside the United States and
enumerates a non-exhaustive list of permissible means of
service that provide notice to that defendant. Although it is
presumed that the enumerated means will provide notice,
whether actual notice has been provided may be challenged
in an individual case.” Fed. R. Crim. P. 4(c)(3)(D) advisory
committee’s note to 2016 amendment. The Committee Note
to subdivision (D)(ii) states that it “provides a non-exhaustive
list illustrating other permissible means of giving service on
organizations outside the United States, all of which must be
carried out in a manner that ‘gives notice.’” Fed. R. Crim. P.
4(c)(3)(D)(ii) advisory committee’s note to 2016 amendment.
IN RE PANGANG GROUP CO., LTD. 15
D
While the rulemaking process for Criminal Rule 4 was
still ongoing, the government obtained a new superseding
indictment against the Pangang Companies. After the
amendments to Criminal Rule 4 took effect, the court reissued
summonses for the Pangang Companies at the government’s
request. The government made a new attempt to serve the
Pangang Companies by serving the president of a U.S.
affiliate of the Pangang Companies and submitting a formal
request that a Chinese agency assist in serving the
summonses abroad. The Chinese agency again declined the
request.
The government also delivered the summonses to the
Quinn Emanuel attorneys by email and certified mail. One of
the Quinn Emanuel attorneys responded by letter on January
17, 2017. Stressing the limited nature of Quinn Emanuel’s
prior special appearances, he explained that the Quinn
Emanuel attorneys were “not authorized to accept service of
the summonses” and that they were not “obligated to send the
summonses to Pangang and [would] not do so.” As the
attorneys later conceded, although they never transmitted the
summonses to the Pangang Companies, they informed the
Pangang Companies that they had received them, causing the
Pangang Companies to consult with two other law firms as to
how they should proceed.
The Pangang Companies failed to appear at the January
2017 hearing set by the summonses, or at a status hearing in
February 2017. The government then filed a motion for the
imposition of civil contempt sanctions on the Pangang
Companies for their failure to appear. On April 24, 2017, the
Pangang Companies made a special appearance through the
16 IN RE PANGANG GROUP CO., LTD.
Quinn Emanuel attorneys, moving to quash service and
opposing the government’s motion for sanctions.
At a hearing on the motions, one of the Quinn Emanuel
attorneys conceded that “[m]y client has authorized me to be
here so they plainly know about these proceedings.” The
attorneys nevertheless argued that their receipt of the
summonses was not equivalent to service on the Pangang
Companies, even under amended Criminal Rule 4.
Alternatively, they argued that the 2016 amendments to
Criminal Rule 4 should not be applied to the government’s
pending complaint.
The district court denied the motion to quash and deferred
ruling on sanctions. The court found that the Pangang
Companies “received notice of the summonses from the
Quinn Emanuel firm, even if they did not receive the actual
documents.” Based on the Quinn Emanuel attorneys’ 2012
and 2013 special appearances, as well as their 2015 comment
letter on the proposed amendments to Criminal Rule 4, the
district court found that the Quinn Emanuel attorneys had “a
pre-existing relationship” with the Pangang Companies, and
had also conceded at the hearing that the Pangang Companies
had received actual notice. Therefore, the court concluded
that delivery of the summonses to the Quinn Emanuel
attorneys satisfied Criminal Rule 4(c)(3)(D)(ii)’s requirement
to serve a summons using a “means that gives notice.”14
Further, the district court held that it was “just and
practicable” to apply amended Criminal Rule 4 to this case
because the Pangang Companies had not been prejudiced
14
The court did not reach the issue whether service on the president
of the Pangang Companies’ U.S. affiliate was sufficient to satisfy Criminal
Rule 4.
IN RE PANGANG GROUP CO., LTD. 17
other than by having to defend against the charges on the
merits.
The Pangang Companies timely appealed, and then filed
this petition for a writ of mandamus. We dismissed the direct
appeal of the court’s interlocutory order, but have jurisdiction
over the petition for a writ of mandamus pursuant to
28 U.S.C. § 1651(a). See In re United States, 884 F.3d 830,
833 (9th Cir. 2018).
II
A writ of mandamus is a “drastic and extraordinary
remedy reserved for really extraordinary causes.” Cheney v.
U.S. Dist. Court for D.C., 542 U.S. 367, 380 (2004) (internal
quotation marks omitted). Accordingly, mandamus is
appropriate only in “exceptional circumstances amounting to
a judicial usurpation of power or a clear abuse of discretion.”
In re United States, 884 F.3d at 834 (quoting Cheney,
542 U.S. at 380).
In deciding whether the writ should issue, we consider the
five factors set forth in Bauman v. U.S. District Court,
557 F.2d 650, 654–55 (9th Cir. 1977):
(1) whether the petitioner has no other means,
such as a direct appeal, to obtain the desired
relief;
(2) whether the petitioner will be damaged or
prejudiced in any way not correctable on
appeal;
18 IN RE PANGANG GROUP CO., LTD.
(3) whether the district court’s order is clearly
erroneous as a matter of law;
(4) whether the district court’s order is an oft
repeated error or manifests a persistent
disregard of the federal rules; and
(5) whether the district court’s order raises
new and important problems or issues of first
impression.
In re United States, 884 F.3d at 834 (citation omitted).
Because “the absence of the third [Bauman] factor, clear
error, is dispositive” and requires denial of mandamus,
Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Court for Dist.
of Mont., 408 F.3d 1142, 1146 (9th Cir. 2005), we begin with
the question whether the district court clearly erred in its
interpretation and application of Criminal Rule 4.
A
The Federal Rules of Criminal Procedure are promulgated
by the Supreme Court pursuant to the Rules Enabling Act.
28 U.S.C. § 2072. Consequently, they are “in every pertinent
respect, as binding as any statute duly enacted by Congress,
and federal courts have no more discretion to disregard [a]
Rule’s mandate than they do to disregard constitutional or
statutory provisions.” Bank of Nova Scotia v. United States,
487 U.S. 250, 255 (1988). “In the absence of a clear
legislative mandate, the Advisory Committee Notes provide
a reliable source of insight into the meaning of a rule,
especially when, as here, the rule was enacted precisely as the
Advisory Committee proposed.” United States v. Vonn,
535 U.S. 55, 64 n.6 (2002). In discerning the meaning of a
IN RE PANGANG GROUP CO., LTD. 19
rule, courts may also consult the rulemaking history of the
relevant Advisory Committee proceedings for further
guidance. See, e.g., Microsoft Corp. v. Baker, 137 S. Ct.
1702, 1709–10 (2017); United States v. Petri, 731 F.3d 833,
839–40 (9th Cir. 2013).
Here, the text of the rule states that “[a] summons is
served on an organization not within a judicial district of the
United States: . . . (ii) by any other means that gives notice
. . . . ” Fed. R. Crim. P. 4(c)(3)(D)(ii). “[T]he word ‘any’
naturally carries ‘an expansive meaning,’” SAS Inst., Inc. v.
Iancu, 138 S. Ct. 1348, 1354 (2018) (quoting United States v.
Gonzales, 520 U.S. 1, 5 (1997)), and typically refers to “all”
possibilities within the phrase that it modifies, unless there is
some basis for limiting its natural meaning, Gonzalez,
520 U.S. at 5.
Applying the relevant language here, the Pangang
Companies are not within a judicial district of the United
States. See Fed. R. Crim. P. 4(c)(3)(D).15 Moreover, the
Pangang Companies do not dispute that the government’s
service of the summonses on their attorneys gave them actual
notice. Therefore, under a straightforward application of
Criminal Rule 4, the government succeeded in serving the
summonses on the Pangang Companies.
15
As the Advisory Committee’s report explains, Criminal Rule
4(c)(3)(D) applies to “organizations that are not within a judicial district
of the United States,” regardless whether the summons is delivered within
such a judicial district. Initial Advisory Committee Report, at 4 n.3.
20 IN RE PANGANG GROUP CO., LTD.
B
The Pangang Companies argue that this straightforward
interpretation of Criminal Rule 4 is erroneous on two
grounds. First, they argue that the canons of statutory
construction do not permit such a broad interpretation of the
amendment to Criminal Rule 4. Second, they argue that we
should read the rule narrowly to avoid inconsistency with the
historical role of special appearances. We address each of
these arguments in turn.
1
First, the Pangang Companies claim that two canons of
statutory construction—the superfluity canon and the canon
of ejusdem generis—require the conclusion that the three
means of giving notice listed in Criminal Rule
4(c)(3)(D)(ii)(a)–(c) limit the scope of “any other means that
gives notice.”
Canons of construction provide guidance for interpreting
ambiguous statutes by providing a compendium of well-
established inferences as to the drafters’ intended meaning.
The first and most important canon of statutory construction
is the presumption “that a legislature says in a statute what it
means and means in a statute what it says there.” Conn. Nat’l
Bank v. Germain, 503 U.S. 249, 253–54 (1992). “When the
words of a statute are unambiguous, then, this first canon is
also the last: ‘judicial inquiry is complete.’” Id. at 254(quoting Rubin v. United States, 449 U.S. 424, 430 (1981)).
When the statute is ambiguous, however, canons may provide
“rules of thumb that help courts determine the meaning of
legislation.” Id. at 253. The superfluity canon guides a court
to infer that Congress did not intend to make any portion of
IN RE PANGANG GROUP CO., LTD. 21
a statute superfluous, and therefore “we must give effect to
every word of a statute wherever possible.” Leocal v.
Ashcroft, 543 U.S. 1, 12 (2004). The canon of ejusdem
generis refers to the inference that a general term in a list
“should be understood as a reference to subjects akin to
th[ose] with specific enumeration.” Ali v. Fed. Bureau of
Prisons, 552 U.S. 214, 223 (2008) (quoting Norfolk & W. Ry.
Co. v. Am. Train Dispatchers Ass’n, 499 U.S. 117, 129
(1991)).
Relying first on the superfluity canon, the Pangang
Companies argue that the district court’s broad reading of “by
any other means that gives notice” renders superfluous the
enumerated means of service listed in Criminal Rule
4(c)(3)(D)(ii)(a)–(c). For instance, there would be no need to
list “stipulated by the parties” as a means that gives notice,
because by the time the government and the criminal
defendant agreed to a stipulated means of service, the
criminal defendant would necessarily have notice. Turning
to the canon of ejusdem generis, the Pangang Companies
argue that because all three enumerated means “are formal
processes that respect domestic and foreign law and
procedure, and are otherwise legal and equitable,” we should
construe the rule to extend only to other processes that share
these characteristics.
We disagree. As explained above, the words “by any
other means that gives notice” are not ambiguous, and we
disfavor efforts to use canons of construction to introduce
ambiguity into straightforward text. See Germain, 503 U.S.
at 253–54.
Moreover, the Pangang Companies’ argument that the
Advisory Committee intended Criminal Rule 4 to be read
22 IN RE PANGANG GROUP CO., LTD.
narrowly in accordance with the canons of construction is
thoroughly undercut by statements of the Advisory
Committee itself. First, the Advisory Committee Notes
indicate that the enumerated list of means of service is non-
exhaustive, thereby dissolving the inference that it is
superfluous both to provide an enumerated list and to allow
other means of service. Fed. R. Crim. P. 4(c)(3)(D)(ii)
advisory committee’s note to 2016 amendment. It is well
established that drafters may include specific examples “out
of an abundance of caution” or to “remove any doubt” that
certain cases fall within the rule’s scope. Ali, 552 U.S. at 226(citation omitted). Here, the enumerated list of examples has
a purpose: it gives the government the benefit of a
presumption that using the means in the list give notice. See
Fed. R. Crim. P. 4(c)(3)(D) advisory committee’s note to
2016 amendment. No such presumption applies to alternate
means. Accordingly, the argument that the rule’s broad
catchall provision makes the list of enumerated means
superfluous is meritless.
Moreover, the Advisory Committee was well aware of the
Pangang Companies’ argument based on the superfluity
canon, and rejected it. The Quinn Emanuel attorneys raised
the identical argument in their comment letter on the draft
rule, asserting that the phrase “‘any other means that gives
notice’ might be said to trump and render superfluous the
limitations imposed in other subsections.” Quinn Emanuel
Comment Letter, supra, at 2. The Advisory Committee flatly
rejected this contention, Final Advisory Committee Report,
supra, at 7, and made clear that the list of means presumed to
give notice did not limit the government’s options; rather, the
purpose of subdivision (D)(ii)’s catch-all provision was to
give the government flexibility, Initial Advisory Committee
Report, supra, at 5; Final Advisory Committee Report, supra,
IN RE PANGANG GROUP CO., LTD. 23
at 3. In one instance, the Advisory Committee directly
rejected the inference that the enumerated list limited the
government. Criminal Rule 4(c)(3)(D)(ii)(c) indicates notice
may be given by a means “permitted by an applicable
international agreement,” but the Advisory Committee’s
report explained that the rule would also allow service by
means that were not permitted by international agreement, so
long as the service gave notice. Final Advisory Committee
Report, supra, at 3 n.2.
For the same reason, any inference that the Advisory
Committee intended to limit service to “formal processes that
respect domestic and foreign law,” pursuant to the canon of
eiusdem generis, is baseless. To the contrary, the Advisory
Committee’s final report contemplated the possibility that the
government might accomplish service “on an organizational
defendant in a foreign nation without its consent, or in
violation of international agreement.” Id. at 4. Further, the
Quinn Emanuel attorneys’ comment letter raised the same
concern they raise in their petition before us, that the
amended rule could be read to authorize service through a
letter or email notifying the organization of the indictment, or
other informal means. Quinn Emanuel Comment Letter,
supra, at 2. Despite being aware of these concerns, the
Advisory Committee chose to make no changes in the rule.
Final Advisory Committee Report, supra, at 5–7.
Accordingly, the canons of statutory construction present no
barrier to giving effect to the clear text of Criminal Rule 4.
2
The Pangang Companies also argue that the district court
erred in holding that the government could effect service by
delivering summonses to the Quinn Emanuel attorneys after
24 IN RE PANGANG GROUP CO., LTD.
they had made prior special appearances; such a ruling, they
argue, would effectively eliminate the possibility of a special
appearance by a foreign corporation to contest service. Given
the important and longstanding role of special appearances
for challenging defects in the service of summons, the
Pangang Companies assert, the Advisory Committee did not
intend the amendments to Criminal Rule 4 to make such a
break with historical practice.
We disagree. As an initial matter, the Pangang
Companies have not offered any evidence of a longstanding
historical practice of allowing special appearances in criminal
cases. The Pangang Companies have pointed only to a
handful of district court cases—all within the last
30 years—which have, without explanation or critical
examination, permitted criminal defendants to enter special
appearances to raise threshold objections. See, e.g., United
States v. Kolon, 926 F. Supp. 2d 794, 797–99 (E.D. Va.
2013); United States v. Tucor Int’l, Inc., 35 F. Supp. 2d.
1172, 1176, 1183–85 (N.D. Cal. 1998); United States v.
Noriega, 683 F. Supp. 1373, 1374 (S.D. Fla. 1988); cf. United
States v. Sinovel Wind Grp. Co., 794 F.3d 787, 789–90 (7th
Cir. 2015) (noting, without comment, that the district court
had permitted an organizational defendant to make a special
appearance). Rather than embodying a fundamental rule,
these cases seem to reflect a more recent trend of prosecuting
criminal defendants who are not amenable to the execution of
a warrant. See, e.g., Kolon, 926 F. Supp. 2d at 800–02
(foreign corporate defendant); Noriega, 683 F. Supp. at 1374
n.3 (“de facto head of the Panamanian government”).
By contrast, there is extensive authority regarding the
historical function of special appearances in civil cases.
Harkness v. Hyde, 98 U.S. 476, 479 (1878) (holding, in a civil
IN RE PANGANG GROUP CO., LTD. 25
case, that where special appearances are allowed, “[t]he right
of the defendant to insist upon the objection to the illegality
of the service was not waived by the special appearance of
counsel for him to move [for] the dismissal of the action on
that ground”); see also Davidson Bros. Marble Co. v. United
States, 213 U.S. 10, 18–19 (1909) (same); S. Pac. Co. v.
Denton, 146 U.S. 202, 206 (1892) (same). But in the civil
context, this historical tradition has been superseded by Rule
12 of the Federal Rules of Civil Procedure, which eliminated
the need to make a special appearance in order to raise such
objections in civil actions. See Republic Int’l Corp. v. Amco
Eng’rs, Inc., 516 F.2d 161, 165 (9th Cir. 1975).
Even if there were a robust tradition of special
appearances in the criminal context, however, we see no basis
for contravening the text of Criminal Rule 4 in order to avoid
limiting the possibility of special appearances. The Pangang
Companies do not argue that serving a defendant who makes
a special appearance is unconstitutional or violates a federal
statute. Cf. Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co.,
484 U.S. 97, 104–05 (1987) (explaining, in the civil context,
that “whether there is authorization to serve summons”
depends on a construction of the applicable federal rule and
any other applicable federal statutes). Indeed, the Supreme
Court has rejected the argument that defendants have a
constitutional right to this procedure. York v. Texas, 137 U.S.
15, 20–21 (1890). Thus a state may, “without violence to the
‘due process’ clause of the 14th Amendment” declare that
“one who voluntarily enters one of its courts to contest any
question in an action there pending shall be deemed to have
submitted himself to the jurisdiction of the court for all
purposes of the action,” including when the person makes “a
special appearance entered for the purpose of objecting that
the trial court has not acquired jurisdiction over the person of
26 IN RE PANGANG GROUP CO., LTD.
the defendant.” W. Life Indem. Co. of Ill. v. Rupp, 235 U.S.
261, 271–72 (1914) (citing York, 137 U.S. at 20).16
Nor is there a basis for inferring that the Advisory
Committee did not intend to impinge on the practice of
special appearances by criminal defendants. The Advisory
Committee was aware, contrary to the Pangang Companies’
contentions, that the change in Criminal Rule 4 would prevent
certain foreign organizations from making a special
appearance to argue that they had not been properly served.
In its comments on the draft rule, Quinn Emanuel argued that
“the rule creates a situation in which any institutional
defendant that appears to contest service has in effect
admitted it had been served.” Advisory Comm. on Criminal
Rules, March 2015 Minutes, at 11 (March 16–17, 2015).17
According to the Advisory Committee’s minutes, the
subcommittee tasked with considering the proposed
amendments to Criminal Rule 4 recommended that the
Advisory Committee reject this argument, reasoning that “the
point of the amendment is to provide a means of service that
gives notice, and there is no legitimate interest in allowing a
procedure in which an institutional defendant can feign lack
of notice.” Id. Under the amendment, the subcommittee
16
The Pangang Companies also argue that the government’s action
“disrupt[ed] the Quinn Emanuel attorneys’ relationship with their client”
as evidenced by the Pangang Companies’ decision to consult with other
law firms about how to respond to the 2017 summonses. As the district
court observed, the Pangang Companies do not assert that this alleged
disruption infringed on their Sixth Amendment right to counsel. The
district court did not abuse its discretion in giving the Pangang
Companies’ conclusory assertion of harm little weight in its analysis.
17
http://www.uscourts.gov/sites/default/files/criminal-min-2015-
03.pdf.
IN RE PANGANG GROUP CO., LTD. 27
explained, an institutional defendant could no longer make a
special appearance to argue that the defendant lacked notice,
but could still use a special appearance to assert other
objections, “such as a constitutional attack on Rule 4, an
objection to a retroactive application of the amendment, or a
claim that an institutional defendant has been dissolved.” Id.Therefore, Criminal Rule 4 would not eliminate the
possibility of special appearances entirely. The Advisory
Committee agreed and voted unanimously to approve the
amendment as initially published, id. at 13, stating in its
report that “nothing in the proposed amendment addresses or
limits any authority of the court to allow a special appearance
to contest service on other grounds,” Final Advisory
Committee Report, supra, at 6.
To the extent the Pangang Companies argue that
delivering a summons to an attorney who previously
represented an institutional defendant does not necessarily
constitute serving a summons on that defendant, we agree.
Criminal Rule 4 does not list delivery of a summons to the
foreign organization’s attorney. Therefore it is not a method
that is presumed to provide notice, and “whether actual notice
has been provided may be challenged in an individual case.”
Fed. R. Crim. P. 4(c)(3)(D) advisory committee’s note to
2016 amendment. This issue is not relevant here, however,
because the Quinn Emanuel attorneys made a special
appearance on the Pangang Companies’ behalf in 2017, and
conceded that the Pangang Companies had notice of the
government’s most recent summons.
C
The Pangang Companies argue alternatively that, even if
the district court correctly interpreted Criminal Rule 4, the
28 IN RE PANGANG GROUP CO., LTD.
court erred by applying the amended version in their case
because it was unjust to apply it retroactively. According to
the Pangang Companies, had they anticipated that amended
Criminal Rule 4 would allow the government to serve them
by delivering the summonses to the attorneys who had
previously made special appearances on their behalf, the
Quinn Emanuel attorneys could have withdrawn their 2012
and 2013 special appearances.
We disagree. Even assuming that the district court’s
application of amended Criminal Rule 4 to the Pangang
Companies was retroactive,18 the district court did not abuse
its discretion in concluding that it was “just and practicable”
to apply the rule and deny the Pangang Companies’ motion
to quash. See United States v. Ross, 372 F.3d 1097, 1105 &
n.6 (9th Cir. 2004) (reviewing a district court’s interpretation
of “just and practicable” for an abuse of discretion). The
amendments to Criminal Rule 4 became effective in
December 2016, and the government delivered the
summonses to the Quinn Emanuel attorneys a month later, in
18
When a court applies the amended version of a federal rule to
“events occurring before [the amendment’s] enactment,” such an
application is “clearly retrospective.” United States v. Woods, 399 F.3d
1144, 1147 (9th Cir. 2005) (citation omitted); see also United States v.
Ross, 372 F.3d 1097, 1105 n.6 (9th Cir. 2004) (same). By contrast, the
district court here applied amended Criminal Rule 4 to events (e.g., the
2017 service of summonses on the Quinn Emanuel attorneys and the
Pangang Companies’ motion to quash) that occurred after the rule’s
effective date of December 1, 2016. But because the Supreme Court
authorized the application of the amended rule to proceedings pending on
its effective date “insofar as just and practicable,” and the district court did
not clearly err in concluding that it was just and practicable to apply the
amended rule in this case, we need not decide whether proceedings against
the Pangang Companies were “pending” for purposes of the Supreme
Court’s transmittal memo when the district court ruled.
IN RE PANGANG GROUP CO., LTD. 29
January 2017. As explained above, under the plain language
of amended Criminal Rule 4, service is effective if it gives
notice, and the district court could reasonably conclude that
the Pangang Companies had notice of the summonses when
their attorneys made a special appearance on their behalf in
April 2017. This was sufficient evidence for the district court
to conclude that the Pangang Companies had been
appropriately served. The government did not rely on the
Quinn Emanuel attorneys’ previously entered special
appearances in 2012 and 2013 to demonstrate notice, and
therefore the Quinn Emanuel attorneys’ inability to withdraw
such earlier special appearances was not prejudicial. Had the
Pangang Companies not made a special appearance through
the Quinn Emanuel attorneys in April 2017, and had the
Quinn Emanuel attorneys maintained that they did not give
their clients notice of the 2017 summonses, the government
would have had to find other means to prove that the Pangang
Companies had actual notice. Therefore, the district court did
not abuse its discretion in concluding that the Pangang
Companies had not demonstrated any prejudice from the
application of amended Criminal Rule 4.
Accordingly, we conclude that the district court did not
err, let alone clearly err, in denying the Pangang Companies’
motion to quash service. We therefore deny the petition for
a writ of mandamus and do not reach the remaining Bauman
factors.
PETITION DENIED.