In re: Grand Jury Subpoena

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 14, 2018 Decided January 8, 2019
No. 18-3071
IN RE: GRAND JURY SUBPOENA
Appeal from the United States District Court
for the District of Columbia
(No. 1:18-gj-00041)
Before: TATEL and GRIFFITH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed PER CURIAM.
Opinion concurring in part and concurring in the judgment
filed by Senior Circuit Judge WILLIAMS.
PER CURIAM: * With the Foreign Sovereign Immunities Act
(the “Act”), Congress unquestionably set out a comprehensive
framework for resolving whether foreign states are entitled to
immunity in civil actions. But did Congress, through the same
Act, tell us how to handle claims for immunity in criminal cases
as well? That question looms large over this litigation
*
NOTE: Portions of this opinion contain sealed
information, which has been redacted.
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concerning a subpoena issued by a grand jury, but we find it
unnecessary to supply a definitive answer. Assuming the Act’s
immunity applies, we hold that it leaves intact the district
courts’ subject-matter jurisdiction over federal criminal cases
involving foreign sovereigns, and that there is a reasonable
probability the information sought through the subpoena here
concerns a commercial activity that caused a direct effect in the
United States. Because the Act—even where it applies—allows
courts to exercise jurisdiction over such activities, and because
the ancillary challenges in this appeal lack merit, we affirm the
district court’s order holding the subpoena’s target, a
corporation owned by a foreign sovereign, in contempt for
failure to comply.
I.
The grand jury seeks information from a corporation (“the
Corporation”) owned by Country A and issued a subpoena
directing the Corporation to produce that information.
The Corporation moved to
quash the subpoena, arguing that it is immune under the Act,
or, alternatively, that the subpoena is unreasonable or
oppressive (and therefore unenforceable under Federal Rule of
Criminal Procedure 17(c)(2)) because it would require the
Corporation to violate Country A’s domestic law.
The district court denied the motion to quash. The
Corporation took an immediate appeal, which an earlier panel
of this court dismissed for lack of appellate jurisdiction. Per
Curiam Order, In re Grand Jury Subpoena, No. 18-3068
(October 3, 2018). The district court then held the Corporation
in contempt, imposing a fine of $50,000 per day until the
Corporation complies with the subpoena, but stayed accrual
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and execution of the penalty pending appeal. The Corporation
then filed this appeal of the contempt order. Because this
appeal involves exclusively legal questions, our review is de
novo. In re Sealed Case, 146 F.3d 881, 883 (D.C. Cir. 1998)
(reviewing contempt order de novo where the district court
allegedly “applied the wrong legal standard”). In a judgment
dated December 18, 2018, we affirmed the district court and
explained that a full opinion would follow. This is that opinion.
II.
Before 1952, foreign sovereigns enjoyed “complete
immunity” in United States courts as “a matter of grace and
comity.” Verlinden B.V. v. Central Bank of Nigeria, 461 U.S.
480, 486 (1983). First articulated in The Schooner Exchange v.
McFaddon, 11 U.S. (7 Cranch) 116 (1812), that rule was in
harmony with the then-existing “general concepts of
international practice.” Michael Wallace Gordon, Foreign
State Immunity in Commercial Transactions § 3.01 (1991).
Over the next century and a half, change slowly crept over the
horizon. “[A]s foreign states became more involved in
commercial activity,” by taking over businesses and other
historically private functions, many grew concerned that states
could manipulate their immunity to obtain market advantages
by evading accountability mechanisms that would hinder
purely private corporations. Rubin v. Islamic Republic of Iran,
138 S. Ct. 816, 821–22 (2018) (noting that the State
Department had expressed such a concern). As a result, several
countries began stripping foreign sovereigns of their former
immunity for “private,” usually commercial, acts. Letter from
Jack B. Tate, Acting Legal Adviser, Department of State, to
Acting Attorney General Philip B. Perlman (May 19, 1952),
reprinted in 26 Department of State Bulletin 984–85 (June 23,
1952) (“Tate Letter”).
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The United States joined this club in 1952, when the
Acting Legal Adviser to the State Department issued a letter
(known as the “Tate Letter”) adopting this so-called
“‘restrictive theory of sovereign immunity.’” Rubin, 138 S. Ct.
at 822 (quoting Verlinden, 461 U.S. at 488). The result “proved
troublesome.” Verlinden, 461 U.S. at 487. Because courts
relied “primarily” on the State Department to guide them
regarding which activities remained immune, many disputes
that were essentially private had the potential to become
spiraling diplomatic imbroglios for the administration of the
day. Id. Nobody was especially happy with the outcomes:
“inconsistent” immunity determinations heavily informed by
“‘political’” and diplomatic considerations. Samantar v.
Yousuf, 560 U.S. 305, 312–13 (2010) (quoting Republic of
Austria v. Altmann, 541 U.S. 677, 690 (2004)).
Seeking to extract the State Department from this stew and
“endorse and codify the restrictive theory of sovereign
immunity,” Congress passed the Foreign Sovereign
Immunities Act in 1976. Id. at 313. Where the Act applies, it
does three things relevant to this case: (1) as a general matter,
it extends foreign sovereigns “immun[ity] from the jurisdiction
of the courts of the United States,” 28 U.S.C. § 1604; (2) it
creates exceptions to the rule of immunity under various
circumstances, including cases based on certain “commercial
activit[ies]” of the sovereign, id. § 1605(a)(2); and (3) it grants
federal district courts subject-matter jurisdiction over certain
“nonjury civil action[s]” against foreign states where they lack
immunity, id. § 1330(a).
The key question here is whether the Act—including
section 1604’s grant of immunity—applies to civil and criminal
proceedings alike. The Corporation tells us the Act does apply
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here, and thereby immunizes the Corporation from this
subpoena. The government responds that no part of the Act
applies to criminal proceedings. “Immunity in criminal
matters,” the government assures us, “‘simply was not the
particular problem to which Congress was responding.’”
Appellee’s Br. 18 (quoting Samantar, 560 U.S. at 323).
The few circuits to consider this issue have reached
differing conclusions, albeit in circumstances distinct from
those here. Compare Southway v. Central Bank of Nigeria, 198
F.3d 1210, 1214 (10th Cir. 1999) (stating in context of a civil
Racketeer Influenced and Corrupt Organizations Act (“RICO”)
claim that the Act does not apply in criminal proceedings), and
United States v. Noriega, 117 F.3d 1206, 1212 (11th Cir. 1997)
(same, in case involving head-of-state immunity claim), with
Keller v. Central Bank of Nigeria, 277 F.3d 811, 820 (6th Cir.
2002) (stating in context of civil RICO claim that the Act does
apply in criminal proceedings), partially abrogated by
Samantar, 560 U.S. 305. Mindful of our obligation to avoid
sweeping more broadly than we must to decide the case in front
of us, we need not weigh in on this dispute. As we explain
below, even assuming section 1604’s grant of immunity
applies to criminal proceedings, the Corporation still lacks
immunity from this particular subpoena.
III.
Taking section 1604’s grant of immunity as a given, the
government must check three boxes for the contempt order to
stand. First, there must be a valid grant of subject-matter
jurisdiction. Second, one of the Act’s exceptions to immunity
must apply. And third, the contempt sanctions must be a
permissible remedy. According to the district court, the
government satisfies all three. We agree.
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A.
We start, as we must, with subject-matter jurisdiction. The
district court purported to exercise its inherent contempt power
in aid of its criminal jurisdiction. See FG Hemisphere
Associates, LLC v. Democratic Republic of Congo, 637 F.3d
373, 377 (D.C. Cir. 2011) (explaining that “federal courts enjoy
inherent contempt power” that “runs with a court’s
jurisdiction”). The problem, according to the Corporation, is
that the Act eliminated all criminal subject-matter jurisdiction
over foreign sovereigns, taking the contempt power with it. The
text of the relevant statutes, however, cuts against the
Corporation’s position. Section 3231 of title 18 gives federal
courts original jurisdiction over “all offenses against the laws
of the United States.” It is hard to imagine a clearer textual
grant of subject-matter jurisdiction. “All” means “all”; the
provision contains no carve-out for criminal process served on
foreign defendants. And nothing in the Act’s text expressly
displaces section 3231’s jurisdictional grant. True, section
1604 grants immunity “from the jurisdiction of the courts,” but
that is no help to the Corporation. Linguistically, granting a
particular class of defendants “immunity” from jurisdiction has
no effect on the scope of the underlying jurisdiction, any more
than a vaccine conferring immunity from a virus affects the
biological properties of the virus itself.
To be sure, we have often referred to the Act’s immunity
provisions as affecting “subject matter jurisdiction.” See, e.g.,
Odhiambo v. Republic of Kenya, 764 F.3d 31, 34 (D.C. Cir.
2014). But in offering that characterization, we are not
referring to section 1604. The provision that usually gives the
exceptions to immunity their jurisdictional status is the Act’s
provision conferring subject-matter jurisdiction over foreign
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states in civil actions, codified at 28 U.S.C. § 1330(a). That
section authorizes jurisdiction over certain nonjury civil
actions “with respect to which the foreign state is not entitled
to immunity.” Thus, establishing that an exception to immunity
applies is one element of invoking subject-matter jurisdiction
under section 1330(a). See Verlinden, 461 U.S. at 489 (using
section 1330(a) to link the immunity exceptions to subject-
matter jurisdiction). This feature of section 1330(a) does not
transmute the entirely separate section 1604 into a provision
about subject-matter jurisdiction.
With no textual provision purporting to eliminate section
3231’s grant of subject-matter jurisdiction, the Corporation
instead focuses on section 1330(a). Although that provision by
its terms merely confers jurisdiction over an unrelated set of
civil cases, the Corporation assures us that, as with an iceberg,
much hides beneath the surface. Specifically, the Corporation
reads the provision to silently and simultaneously revoke
jurisdiction over any case not falling within its terms, including
any criminal proceeding.
Ordinarily, that argument would be a tough sell. We are
usually reluctant to view one statute as implying a limited
repeal of another where the two are capable of coexisting. See
Morton v. Mancari, 417 U.S. 535, 550 (1974) (“In the absence
of some affirmative showing of an intention to repeal, the only
permissible justification for a repeal by implication is when the
earlier and later statutes are irreconcilable.”). But the
Corporation argues this usual rule has no force in the context
of foreign sovereign immunities, citing the Supreme Court’s
statement, first appearing in Argentine Republic v. Amerada
Hess Shipping Corp., that the Act is “the sole basis for
obtaining jurisdiction over a foreign state in our courts.” 488
U.S. 428, 434 (1989).
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Amerada Hess was a civil action. Id. at 431. The plaintiffs
sought relief in tort from Argentina for having bombed their
neutral ship in the course of Argentina’s war with the United
Kingdom over the Falkland, or Malvinas, Islands. Id. at 431–
32. Because the Act pretty plainly granted Argentina immunity
for this essentially sovereign act, see id. at 439–43, the
plaintiffs sought to circumvent that immunity by invoking
subject-matter jurisdiction under the Alien Tort Statute, 28
U.S.C. § 1350, which unlike section 1330(a) makes no mention
of the immunity exceptions. Rebuffing that effort, the Supreme
Court concluded that founding jurisdiction on the Alien Tort
Statute—or, for that matter, any “other grant[] of subject-
matter jurisdiction in Title 28,” id. at 437 (emphasis added)—
would conflict with Congress’s choice “to deal
comprehensively with the subject of foreign sovereign
immunity in the” Act, id. at 438. To avoid that outcome, when
it comes to foreign sovereigns, the Court held that section
1330(a) precludes subject-matter jurisdiction under other, more
general grants, listing the Alien Tort Statute and a bevy of other
examples from the civil code in title 28. Id. at 437–39.
Subsequent decisions from the Supreme Court and this court
echoing that conclusion can all be traced back to Amerada
Hess. See, e.g., Saudi Arabia v. Nelson, 507 U.S. 349, 355
(1993) (quoting Amerada Hess); Schermerhorn v. State of
Israel, 876 F.3d 351, 353 (D.C. Cir 2017) (same). Neither the
Supreme Court nor this court has ever extended Amerada
Hess’s holding to a criminal proceeding.
Uncritically applying the exclusivity rule from Amerada
Hess in the criminal context would yield the conclusion the
Corporation prefers: no jurisdiction, as this grand jury
proceeding is plainly not a “nonjury civil action” covered by
section 1330(a). But even the briefest peek under the hood of
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Amerada Hess shows that the Supreme Court’s reasons for
finding section 1330(a) to be the exclusive basis for jurisdiction
in the civil context have no place in criminal matters.
Crucial to the Court’s logic in Amerada Hess was that the
immunity provision in section 1604 and the jurisdictional
provision in section 1330(a) would “work in tandem”—that is,
that immunity and jurisdiction would rise and fall together. 488
U.S. at 434. In its opinion, the Court gave no hint at all that it
intended to create a loophole where, in criminal cases clearly
covered by an exception to immunity, a district court would
nevertheless lack subject-matter jurisdiction. On the contrary,
the Court was chiefly concerned that exercising jurisdiction
under other provisions in title 28 would provide an end run
around the Act’s immunity provision. See Amerada Hess, 488
U.S. at 436 (“From Congress’ decision to deny immunity to
foreign states in [a certain] class of cases . . . , we draw the
plain implication that immunity is granted in those cases
involving alleged violations of international law that do not
come within one of the [Act’s] exceptions.”). There is no
danger of that evasion here: section 1604 tells us that, where
the Act applies, an action must fall within one of the listed
exceptions and says nothing about excluding criminal actions.
In fact, a reading that embraces absolute immunity in
criminal cases is much harder to reconcile with the Act’s
context and purpose. The Act’s “[f]indings and declaration of
purpose” section explains that Congress intended that states
would “not [be] immune from the jurisdiction of foreign courts
insofar as their commercial activities are concerned.” 28 U.S.C.
§ 1602; accord Rubin 138 S. Ct. at 822 (Congress sought to
hold foreign sovereigns “accountable, in certain circumstances,
for their actions”). As the Corporation admits, however, under
its reading a foreign-sovereign-owned, purely commercial
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enterprise operating within the United States could flagrantly
violate criminal laws and the U.S. government would be
powerless to respond save through diplomatic pressure. What’s
more, such a reading would signal to even non-sovereign
criminals that if they act through such an enterprise, the records
might well be immune from criminal subpoenas.
We doubt very much that Congress so dramatically gutted
the government’s crime-fighting toolkit. The notion is that
much harder to swallow given how unsettled the common law
of criminal immunities for a corporation owned by a foreign
state was in 1976 and remains today. See, e.g., In re
Investigation of World Arrangements, 13 F.R.D. 280, 291
(D.D.C. 1952) (suggesting the law may not recognize
immunity for a “commercial venture, entirely divorced from
any governmental function”); Andrew Dickinson, State
Immunity & State-Owned Enterprises, 10 No. 2 Bus. L. Int’l
97, 124–25 (2009) (positing that international law might allow
criminal prosecutions of “state-owned enterprises”). The lack
of reported cases—before and after the Act—considering
criminal process served on sovereign-owned corporations only
highlights this uncertainty. From that paucity, the Corporation
would have us infer that such corporations are universally
understood to possess absolute immunity, but that notion
strikes us as highly speculative. An equally likely explanation
for the absence of cases is that most companies served with
subpoenas simply comply without objection.
Faced with such uncertainty, if Congress really intended
to furnish a definitive answer to such a fraught question, one
would expect that answer to show up clearly in the Act’s text,
or at least to have been the subject of some discussion during
the legislative process. Cf. MCI Telecommunications Corp. v.
American Telephone and Telegraph Co., 512 U.S. 218, 23
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(1994) (holding Congress did not authorize “a fundamental
revision” of the law through a “subtle device”). Yet the “Act
and its legislative history do not say a single word about
possible criminal proceedings under the statute.” Joseph W.
Dellapenna, Suing Foreign Governments and Their
Corporations 37 (2d ed. 2003). To the contrary, the relevant
reports and hearings suggest Congress was focused, laser-like,
on the headaches born of private plaintiffs’ civil actions against
foreign states. See, e.g., H.R. Rep. No. 94-1487, at 6 (1976)
(identifying the Act’s purpose as “provid[ing] when and how
parties can maintain a lawsuit against a foreign state or its
entities in the courts of the United States”); Jurisdiction of U.S.
Courts in Suits Against Foreign States: Hearings on H.R.
11315 Before the Subcommittee on Administrative Law and
Governmental Relations of the House Committee on the
Judiciary, 94th Cong. 24 (1976) (testimony of Monroe Leigh,
Legal Adviser, Department of State) (testifying that the
“question” the Act addressed was “[h]ow, and under what
circumstances, can private persons maintain a lawsuit against a
foreign government or against a commercial enterprise owned
by a foreign government”). There is, accordingly, scant
evidence that Congress sought to resolve such a significant and
unsettled issue.
This case is thus unlike Amerada Hess. We do not read
case law with the same textual exactitude that we would bring
to bear on an Act of Congress. See Illinois v. Lidster, 540 U.S.
419, 424 (2004) (“[G]eneral language in judicial opinions”
should be read “as referring in context to circumstances similar
to the circumstances then before the Court and not referring to
quite different circumstances that the Court was not then
considering.”). Given the relevant statutes and the Supreme
Court’s reasoning, this is a situation where the Court’s earlier
statements, “[t]hough seemingly comprehensive,” do “not
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provide a clear answer in this case.” Altmann, 541 U.S. at 694.
Since section 3231 and the Act can coexist peacefully, we have
no trouble concluding that the Act leaves intact the district
court’s criminal jurisdiction to enforce this subpoena.
The Corporation warns us that reaching this conclusion
will create a new circuit split, based on the Sixth Circuit’s
opinion in Keller v. Central Bank of Nigeria. But we see no
conflict. Assessing whether the Act leaves room for criminal
prosecutions, the Keller court considered whether the Act itself
contains a specific exception for criminal cases. 277 F.3d at
820 (noting the Act contains no general “exception for criminal
jurisdiction”). No party drew the court’s attention to the
separate grant of subject-matter jurisdiction in section 3231,
and the Sixth Circuit has yet to squarely address whether that
provision can support jurisdiction consistent with the Act.
Accordingly, confronted with the same issue we face here, the
Sixth Circuit would be free to reach the same conclusion we
do: that section 3231 can be invoked in conjunction with the
Act.
At oral argument, the Corporation offered a new theory:
that section 3231 never authorized subject-matter jurisdiction
over criminal proceedings involving foreign sovereigns, even
before the Act. Section 3231’s text, however, contradicts that
argument, as it authorizes jurisdiction over “all offenses against
the laws of the United States.” The Corporation’s
underdeveloped position appears to rest on language from pre-
Act judicial opinions stating that, under the former regime of
complete immunity, a court lacked “jurisdiction” over a case
against a foreign sovereign. See, e.g., Schooner Exchange, 11
U.S. (7 Cranch) at 135 (warship owned by foreign sovereign is
“exempt from the jurisdiction of the country”). But those
opinions date from an era when the word “[j]urisdiction” had
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“many, too many, meanings.” Steel Co. v. Citizens for a Better
Environment, 523 U.S. 83, 90 (1998) (internal quotation marks
omitted) (quoting United States v. Vanness, 85 F.3d 661, 663
n.2 (D.C. Cir. 1996)). In those days, the word’s more “elastic”
conception did not necessarily refer to statutory subject-matter
jurisdiction. United States v. Cotton, 535 U.S. 625, 630 (2002).
As the Supreme Court’s later cases have clarified, the doctrine
of foreign sovereign immunity that pre-dated the Act
“developed as a matter of common law,” not statutory
construction. Samantar, 560 U.S. at 311. And we know that
courts did not think the doctrine affected statutory subject-
matter jurisdiction because the immunity could be waived at
the behest of the U.S. government. Id. at 311–12. Even at that
time, a congressional limit on subject-matter jurisdiction could
not have been waived. See Louisville & Nashville Railroad Co.
v. Mottley, 211 U.S. 149, 152 (1908) (“Neither party has
questioned that jurisdiction, but it is the duty of this court to see
to it that the jurisdiction of the circuit court, which is defined
and limited by statute, is not exceeded.”). We therefore find no
merit to the Corporation’s contention that section 3231’s
historical reach excluded foreign sovereigns.
B.
Subject-matter jurisdiction is, however, just the beginning.
As we have assumed that section 1604 applies, the Corporation
is immune from the court’s criminal jurisdiction, as well as its
associated contempt power, unless one of the Act’s exceptions
applies.
Before diving into the substance of those exceptions, we
pause briefly to dispel the Corporation’s claim that section
1605(a)’s exceptions are categorically unavailable in criminal
cases. The text easily resolves this issue in the government’s
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favor. Section 1605(a)’s exceptions apply to “any case” that
falls within one of the listed provisions. That language—“any
case”—is notable because, as section 1330(a) demonstrates,
Congress knows how to limit a provision to a “civil action”
when it wants to. Congress’s choice to extend the section
1605(a) exceptions to “any case,” instead of just “civil
actions,” tells us that they are available in criminal
proceedings.
Moving to those exceptions, in its ex parte filing the
government steers us to the third clause of section 1605(a)(2).
That provision denies immunity in an “action . . . based . . .
upon an act outside the territory of the United States in
connection with a commercial activity of the foreign state
elsewhere [when] that act causes a direct effect in the United
States.”
Ordinarily, the Corporation would bear the burden to
establish that the exception does not apply. See EIG Energy
Fund XIV, L.P. v. Petroleo Brasileiro, S.A., 894 F.3d 339, 344–
45 (D.C. Cir. 2018) (“[T]he foreign-state defendant bears the
burden of establishing the affirmative defense of immunity,”
including “‘proving that the plaintiff’s allegations do not bring
its case within a statutory exception to immunity.’” (quoting
Phoenix Consulting Inc. v. Republic of Angola, 216 F.3d 36, 40
(D.C. Cir. 2000))). Here, however, the government relies
primarily on ex parte evidence unavailable to the Corporation.
We have repeatedly approved the use of such information when
“necessary to ensure the secrecy of ongoing grand jury
proceedings,” In re Sealed Case No. 98-3077, 151 F.3d 1059,
1075 (D.C. Cir. 1998), and we do so again here. But where the
government uses ex parte evidence, we think the burden falls
on the government to establish that the exception applies, and
we will conduct a searching inquiry of the government’s
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evidence and legal theories as a substitute for the adversarial
process.
Of course, at this stage, it would be putting the cart well
before the horse to require the government to definitively prove
that the factual predicates for the exception exist. The usual
rule is that the showing necessary to find an exception
applicable travels with the burden on the merits—for example,
in a motion to dismiss where a defendant challenges only the
“legal sufficiency” of the complaint, the exception must merely
be plausibly pled. Phoenix Consulting, 216 F.3d at 40. We see
no reason to depart from that rule here. As we have explained
in the personal-jurisdiction context, any other rule would risk
“‘invert[ing] the grand jury’s function’” by “‘requiring that
body to furnish answers to its questions before it could ask
them.’” In re Sealed Case, 832 F.2d 1268, 1274 (D.C. Cir.
1987) (quoting In re Grand Jury Proceedings Harrisburg
Grand Jury 79-1, 658 F .2d 211, 214 (3d Cir. 1981)). As with
personal jurisdiction, then, we ask whether the government has
shown a “‘reasonable probability’” that the exception applies.
See id. (quoting Marc Rich & Co. v. United States, 707 F.2d
663, 670 (2d Cir. 1983)).
The government’s ex parte evidence satisfactorily makes
the necessary showing.
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These facts establish a “reasonable probability” that
section 1605(a)(2) covers this subpoena.
All that remains, then, is to assess whether this “action”—
that is, the subpoena—is “based upon” this act—
. We think it is. In a typical case, to know
what the action is “based upon,” we look to the “‘gravamen’”
or “core” of the action—that is, “‘those elements . . . that, if
proven, would entitle [a party] to relief.’” OBB
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Personenverkehr AG v. Sachs, 136 S. Ct. 390, 395–96 (first
alteration in original) (quoting Saudi Arabia, 507 U.S. at 357).
The Supreme Court has offered some guidance on how to
ascertain that core, explaining that a court should “identify the
particular conduct on which the plaintiff’s action is based.” Id.(quoting Saudi Arabia, 507 U.S. at 356) (internal quotation
marks and alterations omitted). Just how we apply this test in
the context of a subpoena is not immediately obvious. The
“gravamen” of a subpoena may be the mere fact that an entity
possesses the documents in question. Alternatively, the
“gravamen” may be related to the content of the records and
why they may be relevant to the government’s investigation.
Indeed, the correct approach may well vary with the facts of a
given case. Here, however, we need not resolve that issue,
Because the statutory elements for the exception are all
present, it makes no difference that
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C.
With subject-matter jurisdiction and the commercial
activity exception out of the way, we are left with the remedy.
As long as the Act permits monetary contempt sanctions,
sovereign immunity offers the Corporation no refuge. Circuit
precedent provides a clear answer: as we held in FG
Hemisphere, “contempt sanctions against a foreign sovereign
are available under the” Act. 637 F.3d at 379. In that case, we
upheld a civil contempt order against the Democratic Republic
of the Congo very similar to the one imposed here. Id. at 376(describing penalty of “$5,000 per week, doubling every four
weeks until reaching a maximum of $80,000 per week”). We
did so by dividing “the question of a court’s power to impose
sanctions from the question of a court’s ability to enforce that
judgment through execution.” Id. at 377. We stick to that
practice today, meaning the form of the district court’s
contempt order was proper. Whether and how that order can be
enforced by execution is a question for a later day.
IV.
Alternatively, the Corporation invokes Federal Rule of
Criminal Procedure 17(c)(2), asserting the subpoena is
“unreasonable or oppressive”—and must therefore be
quashed—because it would require the Corporation to violate
Country A’s domestic law. Adhering to Federal Rule of
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Criminal Procedure 26.1, we treat “[i]ssues of foreign law” as
“questions of law.” But, as the party who “relies on foreign
law,” the Corporation “assumes the burden of showing that
such law prevents compliance with the court’s order.” In re
Sealed Case, 825 F.2d 494, 498 (D.C. Cir. 1987) (per curiam).
Its efforts to carry that burden fall short.
The Corporation claims that complying with the subpoena
would run afoul of Country A’s law
The text of the law favors the government.
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The Corporation claims that such a reading is “absurd,”
But that claim is belied by
To combat this reading of the text, in the district court and
at the briefing stage in this court, the Corporation relied on two
declarations from its retained counsel.
Pointing to the Supreme Court’s recent decision in
Animal Science Products, Inc. v. Hebei Welcome
Pharmaceutical Co., 138 S. Ct. 1865, 1873 (2018), the
Corporation urges us to “carefully consider” these declarations.
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Of course, we agree that the declarations warrant our
careful consideration. But we must also heed the Supreme
Court’s additional instruction in Animal Science Products to
scrutinize, when evaluating a foreign state’s position regarding
the contents of its own law, “the statement’s clarity,
thoroughness, and support; its context and purpose; . . . [and]
the role and authority of the entity or official offering the
statement.” Id. Those factors all counsel against accepting the
Corporation’s position here. The declarations are quite cursory,
and they contain no citations to authority or Country A’s case
law. Moreover, the statements come from the retained counsel
of a party with a direct stake in this litigation, and they were
plainly prepared with this particular proceeding in mind. Under
those circumstances, our careful consideration of the
declarations leads us to conclude that they shed little light on
the meaning of Country A’s law as it would be interpreted by
that nation’s courts.
Following similar criticisms from the district court and the
government, and after briefing was complete in this court, the
Corporation submitted a new declaration, this time from a
regulatory body of Country A. The government urges us to
strike this filing as untimely. Although that position is not
without merit, exercising an abundance of caution and giving
due deference to Country A’s sovereign status, we will
consider the filing.
Unfortunately for the Corporation, however, the filing fails
to cure the crucial deficiencies of the original declarations. The
new filing still fails to cite a single Country A court case
articulating the Corporation’s preferred interpretation of the
law.
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These omissions, combined with the fact that the
statement was clearly prepared in response to this litigation and
at a very late hour, leave us unpersuaded that the statement
accurately reflects how Country A’s courts would interpret the
relevant provision. Because the Corporation has failed to
satisfy its burden of showing that Country A’s law would
prohibit complying with the subpoena, we agree with the
district court that enforcing the subpoena is neither
unreasonable nor oppressive.
V.
Finally, the Corporation remains dissatisfied with this
court’s ruling on its first appeal. It claims that, out of respect
for its foreign sovereign status, we should not have adhered to
our usual rule requiring a contempt order before taking
appellate jurisdiction over denial of a motion to quash. Even if
we had the power to undo a prior panel’s work in some
circumstances, we could not do so here. Because the district
court has now held the Corporation in contempt, any opinion
by us on whether that procedure was necessary would be
entirely advisory. See Preiser v. Newkirk, 422 U.S. 395, 401
(1975) (“[A] federal court has neither the power to render
advisory opinions nor ‘to decide questions that cannot affect
the rights of litigants in the case before them.’” (quoting North
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Carolina v. Rice, 404 U.S. 244, 246 (1971))). We therefore
dismiss as moot this aspect of the Corporation’s appeal.
VI.
For the foregoing reasons, we deny the government’s
motion to strike and affirm the district court’s contempt order.
So ordered.
Senior Circuit Judge
OBB Personenverkehr AG
v. Sachs this
In re Sealed
Case abrogated on
other grounds by Braswell v. United States
Gucci Am., Inc. v. Weixing Li
ex parte
BNSF Ry. Co. v. Tyrrell
Leibovitch v. Islamic Republic
of Iran
Sealed Case
In re Grand Jury Subpoena No.
7409
any
Odhiambo v. Republic of Kenya
ex parte
id
Masias v. EPA
Schneider v. Kissinger
ex parte
ex parte
Grand Jury
Subpoena No. 7409