No. 17- - Courthouse News Service€¦ · no. 17-_____ in the for the ninth circuit pangang group company, ltd., pangang group steel vanadium & titanium company, ltd., pangang group

No. 17-______

IN THE

FOR THE NINTH CIRCUIT

PANGANG GROUP COMPANY, LTD., PANGANG GROUP STEEL

VANADIUM & TITANIUM COMPANY, LTD., PANGANG GROUP

TITANIUM INDUSTRY COMPANY, LTD. and PANGANG GROUP

INTERNATIONAL ECONOMIC & TRADING COMPANY,

Petitioners,

v.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF

CALIFORNIA,

Respondent,

and

UNITED STATES OF AMERICA,

Real Party in Interest.

PETITION FOR WRIT OF MANDAMUS

Robert P. Feldman

Andrew P. March

QUINN EMANUEL URQUHART

& SULLIVAN, LLP

555 Twin Dolphin Drive, 5th Floor

Redwood Shores, CA 94065

(650) 801-5000

Kathleen M. Sullivan

William B. Adams


& SULLIVAN, LLP

51 Madison Avenue, 22nd Floor

New York, NY 10010

(212) 849-7000

John M. Potter


& SULLIVAN, LLP

50 California Street, 22nd Floor

San Francisco, CA 94111

(415) 875-6600

Attorneys for Specially-Appearing Petitioners

Case: 17-72370, 08/22/2017, ID: 10553264, DktEntry: 1-2, Page 1 of 56

i

CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, Pangang

Group Company, Ltd., Pangang Group Steel Vanadium & Titanium Company,

Ltd., Pangang Group Titanium Industry Company, Ltd. and Pangang Group

International Economic & Trading Company state the following:

All of Pangang Group Company, Ltd.’s stock is owned by Angang Group

Company. Angang Group Company is not publicly traded. No other corporation

owns 10% or more of the stock of Angang Group Company.

Pangang Group Steel Vanadium & Titanium Company, Ltd. has issued

shares to the public on the Shenzhen Stock Exchange. Pangang Group Company,

Ltd. owns a majority of the stock of Pangang Group Steel Vanadium & Titanium

Company, Ltd.

All of Pangang Group Titanium Industry Company, Ltd.’s stock is owned by

Pangang Group Steel Vanadium & Titanium Company, Ltd.

All of Pangang Group International Economic & Trading Company’s stock

is owned by Pangang Group Company, Ltd.


ii

TABLE OF CONTENTS

Page

CORPORATE DISCLOSURE STATEMENT .......................................................... i

TABLE OF AUTHORITIES .................................................................................... iv

PRELIMINARY STATEMENT ............................................................................... 1

RELIEF REQUESTED .............................................................................................. 3

ISSUES PRESENTED ............................................................................................... 3

STATEMENT OF THE CASE .................................................................................. 3

A. The Government’s Initial Attempts At Service Of Criminal

Summons ............................................................................................... 3

B. The Government’s Efforts To Amend Federal Rule Of Criminal

Procedure 4 ............................................................................................ 6

C. The Government’s Renewed Attempts At Service Of Criminal

Summons ............................................................................................... 8

D. The District Court’s Order Denying The Pangang Companies’

Motion To Quash................................................................................. 10

REASONS WHY THE WRIT SHOULD ISSUE ................................................... 11

I. THE DISTRICT COURT ERRED IN RULING THAT THE

PANGANG COMPANIES WERE PROPERLY SERVED UNDER

RECENTLY AMENDED FEDERAL RULE OF CRIMINAL

PROCEDURE 4 ............................................................................................. 12

A. The District Court Wrongly Interpreted Amended Rule 4 To

Permit Service Of A Criminal Summons On Specially-

Appearing Attorneys ........................................................................... 13

1. The Text of Amended Rule 4 Does Not Provide

Authority For Using Specially-Appearing Attorneys As

A Vehicle For Service ............................................................... 13


iii

2. The District Court’s Interpretation Conflicts With the

Structure Of Amended Rule 4 ................................................... 18

(a) The District Court’s Interpretation Improperly

Renders Superfluous The Enumerated Means Of

Permissible Service ......................................................... 19

(b) The District Court’s Interpretation Is Inconsistent

With The Canon Of Ejusdem Generis ............................ 22

B. Application Of Amended Rule 4 To The Pangang Companies

Would Be Unjust ................................................................................. 23

II. THE OTHER BAUMAN FACTORS FAVOR MANDAMUS RELIEF ....... 26

A. The Pangang Companies Have No Other Means Of

Challenging The District Court’s Unprecedented Ruling ................... 26

B. The Pangang Companies Will Suffer Harm That Is Not

Correctable On Appeal From A Final Judgment ................................ 27

C. This Petition Raises A Significant Issue Of First Impression

Concerning Amended Rule 4 .............................................................. 29

CONCLUSION ........................................................................................................ 30

STATEMENT OF RELATED CASES ................................................................... 32

STATEMENT CONCERNING ORAL ARGUMENT ........................................... 33

CERTIFICATE OF COMPLIANCE WITH FRAP 32(C)(2) AND CIRCUIT

RULES 21-2(C) ............................................................................................. 34

CERTIFICATE OF SERVICE ................................................................................ 35

ADDENDUM


iv

TABLE OF AUTHORITIES

Page(s)

Cases

Admiral Ins. Co. v. U.S. Dist. Ct.,

881 F.2d 1486 (9th Cir. 1989) .............................................................................29

Bauman v. U.S. Dist. Ct.,

557 F.2d 650 (9th Cir. 1977) ...................................................... 11, 12, 26, 27, 29

Beck v. Prupis,

529 U.S. 494 (2000) .............................................................................................19

Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Ct.,

408 F.3d 1142 (9th Cir. 2005) .............................................................................12

Calderon v. U.S. Dist. Ct.,

134 F.3d 983 (9th Cir. 1998) ...............................................................................12

Cheney v. U.S. Dist. Ct.,

542 U.S. 367 (2004) ...................................................................................... 11, 27

Circuit City Stores, Inc. v. Adams,

532 U.S. 105 (2001) .............................................................................................22

City of Las Vegas v. Foley,

747 F.2d 1294 (9th Cir. 1984) .............................................................................29

Davidson Bros. Marble Co. v. United States,

213 U.S. 10 (1909) ........................................................................................ 15, 18

Harkness v. Hyde,

98 U.S. 476 (1878) ........................................................................................ 14, 18

Hernandez v. Tanninen,

604 F.3d 1095 (9th Cir. 2010) ...................................................................... 12, 24

In re Cement Antitrust Litig.,

688 F.2d 1297 (9th Cir. 1982) ...................................................................... 28, 29

In re Cooper,

971 F.2d 640 (11th Cir. 1992) .............................................................................28


v

In re United States,

791 F.3d 945 (9th Cir. 2015) ...............................................................................27

Midland Asphalt Corp. v. United States,

489 U.S. 794 (1989) .............................................................................................26

Miller v. Gammie,

335 F.3d 889 (9th Cir. 2003) ...............................................................................12

Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc.,

526 U.S. 344 (1999) .............................................................................................27

Pacific Car & Foundry Co. v. Pence,

403 F.2d 949 (9th Cir. 1968) ...............................................................................28

Perry v. Schwarzenegger,

591 F.3d 1147 (9th Cir. 2010) .................................................... 12, 27, 28, 29, 30

Planned Parenthood of Idaho v. Wasden,

376 F.3d 908 (9th Cir. 2004) ...............................................................................19

Republic of Ecuador v. Mackay,

742 F.3d 860 (9th Cir. 2014) ........................................................................ 17, 18

S. Pac. Co. v. Denton,

146 U.S. 202 (1892) .............................................................................................14

San Jose Mercury News, Inc. v. U.S. Dist. Ct.,

187 F.3d 1096 (9th Cir. 1999) .............................................................................12

Schlagenhauf v. Holder,

379 U.S. 104 (1964) ...................................................................................... 29, 30

Special Inv., Inc. v. Aero Air, Inc.,

360 F.3d 989 (9th Cir. 2004) ...............................................................................29

TRW Inc. v. Andrews,

534 U.S. 19 (2001) ...............................................................................................19

United States v. Diveroli,

729 F.3d 1339 (11th Cir. 2013) ...........................................................................18


vi

United States v. Guerrero,

693 F.3d 990 (9th Cir. 2012) ...............................................................................26

United States v. Kolon Indus., Inc.,

926 F. Supp. 2d 794 (E.D. Va. 2013) ..................................................................14

United States v. Pangang Group Co.,

879 F. Supp. 2d 1052 (N.D. Cal. 2012) .............................................................4, 5

United States v. Ross,

372 F.3d 1097 (9th Cir. 2004) .............................................................................24

United States v. Sanchez-Gomez,

859 F.3d 649 (9th Cir. 2017) ...............................................................................11

United States v. Tacoma Oriental S.S. Co.,

86 F.2d 363 (9th Cir. 1936) .................................................................................14

United States v. Tucor Int’l,

35 F. Supp. 2d 1172 (N.D. Cal. 1998) .................................................................14

United States v. Vonn,

535 U.S. 55 (2002) ...............................................................................................17

United States v. Woods,

399 F.3d 1144 (9th Cir. 2005) ...................................................................... 23, 24

Van Cauwenberghe v. Biard,

486 U.S. 517 (1988) .............................................................................................27

Statutes, Regulations & Rules

28 U.S.C. § 1291 ......................................................................................................26

28 U.S.C. § 1292(b) .................................................................................................26

Fed. R. Civ. P. E(8) ..................................................................................................14

Fed. R. Civ. P. 4(m) .................................................................................................28

Fed. R. Civ. P. 12(b) ................................................................................................14

Fed. R. Civ. P. 12(h) ................................................................................................14


vii

Fed. R. Civ. P. 35 .....................................................................................................30

Fed. R. Crim. P. 4(c)(3)(C) ....................................................................................4, 5

Fed. R. Crim. P. 4(c)(3)(D) .............................................................................. passim

Fed. R. Crim. P. 4(c)(3)(D)(i) ............................................................... 16, 20, 22, 23

Fed. R. Crim. P. 4(c)(3)(D)(ii) ......................................................................... passim

Fed. R. Crim. P. 4(c)(3)(D)(ii)(a) ..................................................................... 21, 23

Fed. R. Crim. P. 4(c)(3)(D)(ii)(b) ..................................................................... 21, 23

Fed. R. Crim. P. 4(c)(3)(D)(ii)(c) ..................................................................... 21, 23

Fed. R. Crim. P. 12(b)(3)(B) ....................................................................................19

Other Authorities

2A Norman Singer, Sutherland on Statutes & Statutory Construction §

47:17 (7th ed. 2016) ...................................................................................... 21, 22

Restatement (Second) of Judgments § 10 ................................................................14


1

PRELIMINARY STATEMENT

Addressing an issue of first impression under recently amended Federal

Rule of Criminal Procedure 4, which took effect December 1, 2016, the U.S.

District Court for the Northern District of California (White, J.) erroneously ruled

that the government properly served Petitioners1—companies organized under the

laws of the People’s Republic of China—by delivering a criminal summons to

their lawyers in the United States who had specially appeared in the district court

for the limited purpose of contesting the government’s prior attempts to serve

process. The district court’s unprecedented order misinterprets new Rule

4(c)(3)(D)(ii) to permit any means of service that “gives notice” and thus to

override sub silentio longstanding authority providing that a special appearance

may not be a vehicle for service of process. That interpretation is erroneous.

Exercise of this Court’s mandamus authority is necessary to correct the

district court’s error and address this important issue of first impression. The

district court’s interpretation of new Rule 4(c)(3)(D)(ii) conflicts with the rule’s

text and accompanying advisory committee’s note, which provide an illustrative

list of the permissible means of service that makes clear that the phrase “any

1 Petitioners are Pangang Group Company, Ltd. (“Pangang Group”), Pangang

Group Steel Vanadium & Titanium Company, Ltd. (“Pangang Steel”), Pangang

Group Titanium Industry Company, Ltd. (“Pangang Titanium”), and Pangang

Group International Economic & Trading Company (“Pangang Group

International”) and are collectively referred to herein as the “Pangang Companies.”


2

means” in Rule 4(c)(3)(D)(ii) does not literally include any means. Moreover,

fundamental canons of construction require that any means of service outside that

list must be like in kind, as service on specially appearing attorneys is not. Unless

vacated by this Court, the district court’s order will render mutual or multilateral

agreements on criminal legal assistance irrelevant, risking harm to foreign

relations, and will effectively eliminate any meaningful ability to challenge service

of a criminal summons on foreign organizations.

All other relevant factors also support mandamus. The Pangang Companies

are pursuing a direct appeal of the district court’s order denying its motion to quash

(which has been docketed as No. 17-10318), but if this Court determines that it

lacks jurisdiction over that appeal, then mandamus will be Petitioners’ only avenue

for obtaining meaningful relief. Moreover, Petitioners will suffer harm from the

government’s efforts to circumvent the Rule 4 service requirements, including

subjection to criminal proceedings and interference with their relationship with

their specially-appearing attorneys, that cannot be corrected by appeal from final

judgment.

For these reasons and the others discussed below, the petition should be

granted.


3

RELIEF REQUESTED

The Pangang Companies respectfully seek a writ of mandamus directing the

district court to vacate its order denying their motion to quash service of a criminal

summons. The Pangang Companies have also filed a direct appeal of the district

court’s order denying their motion to quash, which has been docketed as No. 17-

10318; they seek mandamus relief in the event the Court holds that it lacks

jurisdiction under the collateral-order doctrine to consider their direct appeal.

ISSUES PRESENTED

1. Whether new Federal Rule of Criminal Procedure 4(c)(3)(D)(ii)

permits serving a criminal summons on a defendant’s attorneys who specially

appear for the sole purpose of contesting service of process.

2. Whether new Federal Rule of Criminal Procedure 4(c)(3)(D)(ii) may

justly apply where the government initiated the amendment process but failed to

disclose any intent that the new Rule permit service on attorneys who had specially

appeared under the prior version of the Rule.

STATEMENT OF THE CASE

A. The Government’s Initial Attempts At Service Of Criminal

Summons

The Pangang Companies are organizations located in the People’s Republic

of China. The government obtained a superseding indictment against them in


4

2012, charging them with attempt and conspiracy to steal trade secrets relating to

the manufacture of titanium dioxide. Dkt. 64.

In February 2012, the government delivered and mailed summonses to Pan

America, Inc.—a New Jersey company jointly owned by Pangang Group and

Pangang International, but not named in the indictment—in its first attempt to

comply with the requirements in Federal Rule of Criminal Procedure 4 for service

of criminal summons. See United States v. Pangang Group Co., 879 F. Supp. 2d

1052, 1056 (N.D. Cal. 2012).

At the time the government served Pan America, Rule 4 did not distinguish

between service on domestic and foreign organizations, and instead 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 return service of process. A copy must also be

mailed to the organization’s last known address within the district or

its principal place of business elsewhere in the United States.

Fed. R. Crim. P. 4(c)(3)(C).

Attorneys at the law firm of Quinn Emanuel Urquhart & Sullivan, LLP

(“Quinn Emanuel attorneys”) informed the district court by letter that they would

attend the Pangang Companies’ March 1, 2012 arraignment for the “limited

purposes” of “requesting leave for the special appearances of (1) [the Pangang

Companies] so that they may move to dismiss for insufficiency of service …; and

(2) [the Quinn Emanuel attorneys] to represent [the Pangang Companies] for this


5

limited purpose.” ER98-99. The letter expressly stated that the Quinn Emanuel

attorneys were “not authorized to appear for any purpose beyond contesting

service.” ER99.

The district court granted the Pangang Companies’ and Quinn Emanuel

attorneys’ special appearances, as reflected in minute entries memorializing the

arraignment (Dkt. Nos. 79, 80, 81, 82), and subsequent orders (Dkt. No. 176 at 1

(referencing “specially appearing defendants”); Dkt. No. 293 at 1 (same)), and the

government never objected to either special appearance (ER53).

The specially-appearing Pangang Companies thereafter moved to quash

service of the summons (Dkt. No. 107), and the district court granted the motion in

July 2012, ruling that delivering and mailing the summons to Pan America did not

effect service on the Pangang Companies, Pangang Group, 879 F. Supp. 2d at

1059-69 (Dkt. No. 176).

The government next attempted to serve Pangang Group and Pangang

International in September and November 2012, by mailing the summonses to

Tinox Chemical LLC (“Tinox”), a company unaffiliated with any of the Pangang

Companies, and by delivering the summons Tinox’s general manager. The

Pangang Companies again moved to quash service of the summons (Dkt. 237), and

the district court granted their motion in April 2013, ruling that the government’s

efforts again failed to comply with Rule 4 (Dkt. 293 at 7-11).


6

In August 2013, the government sought new summonses for Pangang Group

and Pangang International, and requested that the district court either (1) “find[]

that delivery and mailing to [Pan America] will substantially comply with Rule 4

and result in actual notice to Pangang Group and [Pangang International]”; or (2)

in the alternative, dismiss the indictment. Dkt. No. 423 at 2. The district court

denied both requests, but advised the government it would consider entering a

terminating order if the government believed that its prior orders quashing service

were not appealable under the collateral order doctrine, and the government

attested that “no new facts … could be developed” that would affect the district

court’s prior rulings. Dkt. No. 467. In December 2013, the government filed an

attestation that no new facts could be developed affecting the adequacy of service

on the Pangang Companies. Dkt. No. 615. Before the district court took any

action with respect to the indictment, however, the government withdrew its

request for a terminating order. Dkt. No. 834.

B. The Government’s Efforts To Amend Federal Rule Of Criminal

Procedure 4

More than a year after withdrawing its request for a terminating order and

having made no additional efforts to serve the Pangang Companies, the

government submitted a status statement in July 2015 that informed the district

court of proposed amendments to Rule 4 that the government asserted would

“provide a means for effecting service” on the Pangang Companies. ER97. The


7

government indicated it would attempt service on the Pangang Companies after the

rule took effect in December 2016, but never disclosed that it would use the

specially-appearing Quinn Emanuel attorneys to do so. (Id.)

While the July 2015 status statement was the first notice of the proposed

amendments that the government provided the district court, the government had

been instrumental in initiating the amendments process. In October 2012, only

months after the district court had granted the Pangang Companies’ first motion to

quash, the government sent a letter to the Advisory Committee on the Criminal

Rules recommending amendments to Rule 4. ER30-38. Using this case as an

example (ER33-34), the government expressed concern that Rule 4 “may act as an

impediment to prosecution” and recommended specific changes to Rule 4,

including “removing the mailing requirement” (ER34-38). The government

recognized in its letter, however, that “[t]he greater public aims of criminal

process—condemnation of specific acts and deterrence—are distinct from those in

civil process—private damages” and that “[t]his distinction justifies a higher

burden on the government for serving a criminal defendant” than a civil defendant.

ER35. Accordingly, while lobbying for less stringent service requirements, the

government explained that it “continues to favor personal delivery on ‘an officer,

… managing or general agent, or to another agent appointed or legally authorized

to receive service of process.’” Id.


8

The government continued to participate in the amendment process until

amended Rule 4 was adopted. See, e.g., ER56-59.

C. The Government’s Renewed Attempts At Service Of Criminal

Summons

The current version of Rule 4 became effective on December 1, 2016. It

provides in relevant part:

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 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).

In January 2017, the government attempted to serve the Pangang Companies

pursuant to new Rule 4(c)(3)(D)(ii). After obtaining re-issued summonses (Dkt.

No. 986 at 1-2), the government had them delivered to Todd Wang, the president

of Angang America Inc.—a company unaffiliated with the Pangang Companies—

in East Brunswick, New Jersey. Dkt. No. 992 at 5; Dkt. No. 1008 ¶¶ 17-20; see


9

Dkt. No. 1013 at 6-10, 13-15. The government separately mailed and e-mailed the

summonses to the specially-appearing Quinn Emanuel attorneys. ER53; ER66;

ER68; Dkt. No. 992 at 6.

The Quinn Emanuel attorneys responded by letter, explaining that their

“firm made a special appearance in 2012 … to contest service of summonses on

the Pangang [Companies]” and that “[b]y definition, our special appearance did not

mean that we were making our firm available to accept service of the summonses.”

ER70. The letter stated that the Quinn Emanuel attorneys were “not authorized to

accept the summonses in 2012” and were “not authorized to accept service of the

summonses now,” and informed the government that the Quinn Emanuel attorneys

would not send the summonses to the Pangang Companies. ER70-71.

After neither the Pangang Companies nor the Quinn Emanuel attorneys

appeared at an arraignment that had been scheduled for January 30, 2017 (Dkt.

Nos. 988, 989, 990, 991), the government moved for sanctions (Dkt. No. 998). In

March 2017, the Pangang Companies filed an ex parte application to set a briefing

schedule on a third motion to quash service of summons (Dkt. No. 1000) and filed

a third motion to quash in April 2017 (Dkt. No. 1013). The motion was fully

briefed, and the district court heard argument in June 2017. Dkt. No. 1022; Dkt.

No. 1027.


10

D. The District Court’s Order Denying The Pangang Companies’

Motion To Quash

On July 18, 2017, the district court entered an order denying the Pangang

Companies’ third motion to quash, ruling that “the Pangang [Companies] received

notice of the summonses from the Quinn Emanuel firm, even if they did not

receive the actual documents,” and thus that service was proper under new Rule

4(c)(3)(D)(ii). Add. 6. The district court reasoned that “the point of the

amendment [to Rule 4] is to provide a means of service that gives notice,” and

delivery of the summonses to the specially-appearing Quinn Emanuel attorneys

was a “means that gives notice,” since the Pangang Companies “had a pre-existing

relationship” with them. Add. 6, Add. 7. The district court also concluded that

applying amended Rule 4 in this action was “neither unjust nor impracticable,”

explaining that if the amended Rule 4 did not apply, one of the purposes of the

amendment would be frustrated, because “the [g]overnment would not be able to

pursue the charges at a trial on the merits.” (Add. 10.)2

The Pangang Companies filed a timely notice of appeal on August 1, 2017.

Dkt. No. 1026. This Court thereafter directed the Pangang Companies to show

cause by August 23, 2017, why their appeal should not be dismissed for lack of

jurisdiction. See Case No. 17-10318, Dkt. No. 2. The Pangang Companies intend

2 Because the district court concluded that service was effected through the

specially-appearing Quinn Emanuel attorneys, it did not address whether service

on Todd Wang was valid. Add. 6.


11

to do so, and have filed this petition in the event they are unable to pursue their

direct appeal.

REASONS WHY THE WRIT SHOULD ISSUE

A writ of mandamus is necessary to correct the district court’s error in

interpreting new Federal Rule of Criminal Procedure 4(c)(3)(D)(ii) to permit

service of a criminal summons on specially-appearing counsel. In assessing

whether to issue a writ of mandamus, this Court considers five factors: (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; (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.

Bauman v. U.S. Dist. Ct., 557 F.2d 650, 654-55 (9th Cir. 1977).3

Although a writ of mandamus generally requires clear error, where, as here,

“a petition for mandamus raises an important issue of first impression … a petition

3 The Supreme Court has identified three conditions for a writ of mandamus to

issue: (1) the petitioner must have “no other adequate means to attain the relief”

sought; (2) the petitioner must have a “clear and indisputable” right to the writ; and

(3) the writ must be “appropriate under the circumstances.” Cheney v. U.S. Dist.

Ct., 542 U.S. 367, 380-81 (2004). “These conditions are consistent with the five

factors [the Ninth Circuit] has used since Bauman ….” United States v. Sanchez-

Gomez, 859 F.3d 649, 656 (9th Cir. 2017).


12

need only show ‘ordinary (as opposed to clear) error.’” San Jose Mercury News,

Inc. v. U.S. Dist. Ct., 187 F.3d 1096, 1100 (9th Cir. 1999) (quoting Calderon v.

U.S. Dist. Ct., 134 F.3d 983, 984 (9th Cir. 1998)). And where a district court’s

discretionary ruling is at issue, “a clear abuse of discretion[] will justify” issuance

of the writ. Hernandez v. Tanninen, 604 F.3d 1095, 1099 (9th Cir. 2010).

“‘Not every [Bauman] factor need be present at once.’” Perry v.

Schwarzenegger, 591 F.3d 1147, 1156 (9th Cir. 2010) (quoting Burlington N. &

Santa Fe Ry. Co. v. U.S. Dist. Ct., 408 F.3d 1142, 1146 (9th Cir. 2005)). Instead,

“‘[t]he considerations are cumulative and proper disposition will often require a

balancing of conflicting indicators.’” Miller v. Gammie, 335 F.3d 889, 895 (9th

Cir. 2003) (en banc) (quoting Bauman, 557 F.2d at 655).

These factors strongly favor granting the petition here.

I. THE DISTRICT COURT ERRED IN RULING THAT THE

PANGANG COMPANIES WERE PROPERLY SERVED UNDER

RECENTLY AMENDED FEDERAL RULE OF CRIMINAL

PROCEDURE 4

Turning first to the merits, the third Bauman factor—whether the district

court erred as a matter of law—strongly supports mandamus relief for two

independent reasons. First, the district court erroneously concluded that new Rule

4(c)(3)(D)(ii) permits service of a criminal summons on a foreign organizational

defendant by delivery of the summons to specially-appearing counsel. Second, the

district court wrongly concluded that applying new Rule 4(c)(3)(D)(ii) in this


13

case—which was pending when the amendments to Rule 4 took effect—was “just

and practicable.” Both favor granting the writ.

A. The District Court Wrongly Interpreted Amended Rule 4 To

Permit Service Of A Criminal Summons On Specially-Appearing

Attorneys

The district court erred in concluding that delivery of a criminal summons to

the Quinn Emanuel attorneys—who specially appeared for the sole purpose of

moving to quash the government’s prior attempts at service—was a permissible

means of service under recently amended Federal Rule of Criminal Procedure 4.

The district court’s interpretation of new Rule 4(c)(3)(D)(ii) is inconsistent with

longstanding authority holding that a special appearance may not be a vehicle for

service of process, or otherwise result in waiver. Nothing in the recent

amendments to Rule 4 suggests it was intended to abrogate that authority. And the

text of the Rule itself, the advisory committee’s note accompanying the recent

amendments, and traditional canons of construction governing interpretation of the

Federal Rules all show otherwise.

1. The Text of Amended Rule 4 Does Not Provide Authority

For Using Specially-Appearing Attorneys As A Vehicle For

Service

The district court’s determination that delivery of the summons to the

specially-appearing Quinn Emanuel attorneys effected service on the Pangang

Companies is contrary to the fundamental rule that special appearances may not be


14

a vehicle for service of process. “A special appearance is an appearance made by a

defendant at the threshold of the litigation before he asserts any other objections or

defenses and in which he contends that the process served on him is invalid,”

RESTATEMENT (SECOND) OF JUDGMENTS § 10 cmt. b. Entering a special

appearance was the common law “procedure for raising objections … to the

territorial jurisdiction of the court,” id., but, as this Court has observed, “[t]he most

common grounds for a special appearance are defects in the summons … or

illegality of service,” United States v. Tacoma Oriental S.S. Co., 86 F.2d 363, 366

(9th Cir. 1936) (emphasis added).4

The very purpose of a special appearance is to permit a defendant to make

an objection to service of process without the risk of waiving that objection and

being served. See, e.g., Harkness v. Hyde, 98 U.S. 476, 479 (1878) (“The right of

[a] defendant to insist upon the objection of the illegality of … service [is] not

waived by [a] special appearance of counsel for him to move … that the service be

set aside.”); S. Pac. Co. v. Denton, 146 U.S. 202, 206 (1892) (“Illegality in a

proceeding by which jurisdiction is to be obtained is in no case waived by the

4 Although special appearances are no longer necessary under the Federal Rules

of Civil Procedure, see FED. R. CIV. P. 12(b), (h), they are still employed in federal

admiralty cases, see FED. R. CIV. P. E(8), and in federal criminal cases, see, e.g.,

United States v. Kolon Indus., Inc., 926 F. Supp. 2d 794, 797-98 (E.D. Va. 2013)

(noting special appearance of criminal defendant to challenge service); United

States v. Tucor Int’l, 35 F. Supp. 2d 1172, 1176 (N.D. Cal. 1998) (noting district

court’s grant of “leave to make a special appearance”).


15

appearance of the defendant for the purpose of calling the attention of the court to

such irregularity.”). Accordingly, the Supreme Court has long recognized that a

specially-appearing defendant “cannot be compelled to waive [an] objection [to

service] if he chooses … to insist upon it, and any rule of court which seeks to

compel waiver is unauthorized by law and invalid.” Davidson Bros. Marble Co. v.

United States, 213 U.S. 10, 18-19 (1909).

The district court’s ruling upholding service on specially-appearing

attorneys contravenes this authority and, indeed, effectively eliminates the

possibility of a special appearance to contest service under Rule 4(c)(3)(D)(ii), for

all special appearances—even those the government has purported to accept (see

supra, at 5)—would automatically be converted to general appearances if the

government could serve a specially-appearing attorney. The district court

concluded that delivery of the summons to the Quinn Emanuel attorneys was a

“means that gives notice” under Rule 4(c)(3)(D)(ii), because the Quinn Emanuel

attorneys “had a pre-existing relationship” with the Pangang Companies. Add. 6.

But the district court ignored the nature of that relationship. Four years prior to the

government’s latest attempt at service, the Quinn Emanuel attorneys expressly

sought “leave for … special appearances” on behalf of the Pangang Companies

(ER98), which the court granted without objection by the government (see Dkt.

Nos. 79, 80, 81, 82) (“Mr. Feldman and Mr. Potter are specially appearing on


16

behalf of the corporate defendant[s] and represent to the Court that the

defendant[s] ha[ve] not been served as of yet ….”)). The Quinn Emanuel attorneys

never made a general appearance, and they were never authorized to accept service

on behalf of the Pangang Companies. ER53; ER54.

The district court nonetheless determined that service on the specially-

appearing Quinn Emanuel attorneys was effective because minutes from a March

2015 Advisory Committee meeting stated that “‘the point of the amendment is to

provide a means of service that gives notice.’” Add. 7 (quoting ER11). But the

district court’s conclusion that this statement permits service of a criminal

summons by any means that gives notice is contradicted by the advisory

committee’s note to the amendments, which provides that subdivisions (i) and (ii)

of Rule 4(c)(3)(D) describe “permissible means” of service. FED. R. CRIM. P.

4(c)(3)(D) advisory committee’s note (“This new subdivision 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.”) (emphasis added). 5 “Permissible” would be an

5 The advisory committee’s note also refers to “permissible” means of service in

describing both subdivisions of Rule 4(c)(3)(D). As to subdivision (i), the

advisory committee states that “delivery of a copy of the criminal summons to an

officer, or to a managing or general agent … is a permissible means for serving an

organization outside of the United States.” FED. R. CRIM. P. 4(c)(3)(D)(i) advisory

committee’s note; id. (“[S]ervice of a criminal summons by delivery to an

appointed or legally authorized agent in a manner that provides notice to the entity


17

unnecessary qualifier of “means” in the advisory committee note if all means that

give notice are acceptable under the Rule. The district court erred in relying on

unpublished meeting minutes over the advisory committee’s official note

accompanying the final amendments.6

Nothing in the recent amendments to Rule 4, moreover, suggests any intent

to limit the historical function of special appearances: that a defendant and its

lawyer may make a special appearance without fear of being handed a summons,

entirely defeating the purpose of the limited appearance. To the contrary, as shown

below (see infra, at 18-23), the text, history, and canons of construction all show

otherwise.

Indeed, during the process leading to the adoption of amended Rule 4, both

the government and the advisory committee indicated that special appearances

would remain available. Responding to comments that the Quinn Emanuel

attorneys submitted to the advisory committee (see ER26-28), the government

… is [also] an acceptable means of service.”) (emphasis added). And the advisory

committee note likewise states that “[s]ubdivision (ii) 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.’”

6 Because “the explanatory notes are contemporaneously drafted by the same

entity charged with drafting the rules, they are a particularly reliable indicator of

legislative intent.” Republic of Ecuador v. Mackay, 742 F.3d 860, 865 (9th Cir.

2014) (citing cases interpreting Federal Rules in light of advisory committees’

notes); United States v. Vonn, 535 U.S. 55, 64 n.6 (2002) (“In the absence of a

clear legislative mandate, the Advisory Committee Notes provide a reliable source

of insight into the meaning of a rule ….”).


18

informed the advisory committee that “nothing in the proposed rule would alter

current law regarding whether a corporate defendant could specially appear to

contest the constitutionality of the amended Rule 4, whether the rule applied

retroactively, or whether the rule applied to a particular defendant.” ER57. The

advisory committee likewise stated that “[i]f the amendment [to Rule 4] were

adopted, there would be … objections an institutional defendant might assert by a

special appearance.” ER11. The government surely would not contend that

service on such specially-appearing counsel would be permissible—nor did the

advisory committee make any such suggestion—but that is the very implication of

the government’s action in this case and the district court’s interpretation of the

amended Rule.

Because the Quinn Emanuel attorneys made only a special appearance in

this action, that appearance may not be a vehicle for service of summons under

settled authority. Davidson Bros., 213 U.S. at 18-19; Harkness, 98 U.S. at 479.

2. The District Court’s Interpretation Conflicts With the

Structure Of Amended Rule 4

The district court’s ruling that specially-appearing counsel may be a vehicle

for serving a criminal summons because that is a “means that gives notice” also

disregards traditional rules of statutory construction, which govern interpretation of

the Federal Rules. Republic of Ecuador, 742 F.3d at 864 (“We apply the

‘traditional tools of statutory construction’ to interpret the federal rules.”); United


19

States v. Diveroli, 729 F.3d 1339, 1342-43 (11th Cir. 2013) (applying traditional

canons of statutory interpretation to Federal Rule of Criminal Procedure

12(b)(3)(B)). The district court’s interpretation of Rule 4(c)(3)(D)(ii) renders

superfluous the express list of permissible means of service, disregards critical text

and history, and conflicts with the canon of ejusdem generis.

(a) The District Court’s Interpretation Improperly

Renders Superfluous The Enumerated Means Of

Permissible Service

In construing Rule 4(c)(3)(D)(ii) to permit service on specially-appearing

attorneys, the district court disregarded the “longstanding canon of statutory

construction that terms in a statute should not be construed so as to render any

provision of that statute meaningless or superfluous.” Beck v. Prupis, 529 U.S.

494, 506 (2000); Planned Parenthood of Idaho v. Wasden, 376 F.3d 908, 928 (9th

Cir. 2004) (it “‘is a cardinal principle of statutory construction that a statute ought

… to be so construed that … no clause, sentence, or word shall be superfluous,

void, or insignificant.’”) (quoting TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001))

(internal quotation marks omitted).

The district court determined that delivery of the summons to the specially-

appearing Quinn Emanuel attorneys effected service on the Pangang Companies

under Rule 4(c)(3)(D)(ii) simply because it was a “means that gives notice.” Add.

7. But it is clear from the rest Rule 4(c)(3)(D)—and the advisory committee note


20

thereto—that the district court’s interpretation is overbroad. Other provisions of

the Rule describe highly-specific permissible means of service that are rendered

superfluous if Rule 4(c)(3)(D)(ii) is interpreted literally to encompass “any means”

of service that gives notice.

The preceding provision, subdivision (c)(3)(D)(i), permits service of a

criminal summons an organizational defendant outside the United States by

delivery of the summons “in a manner authorized by the foreign jurisdiction’s law,

to an officer, to a managing or general agent, or to an agent … legally authorized

to receive service of process.” Rule 4(c)(3)(D)(ii) then states that service may be

made “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)(ii). And the advisory committee note explains in great detail

that, with respect to the second and third categories, “the phrase ‘applicable

international agreement’ refers to an agreement that has been ratified by the United

States and the foreign jurisdiction and is in force” and includes “crime-specific

multilateral agreements (e.g., the United Nations Convention Against Corruption

(UNCAC), S. Treaty Doc. No. 109-6 (2003)), regional agreements (e.g., the Inter-

American Convention on Mutual Assistance in Criminal Matters (OAS MLAT), S.


21

Treaty Doc. No. 105-25 (1995)), and bilateral agreements.” FED. RULE CRIM. P.

4(c)(3)(D)(ii) advisory committee’s note.

All of these means of permissible service—those enumerated in

subdivisions (c)(3)(D)(i), (ii)(a), (ii)(b), and (ii)(c)—are presumptively “means that

give[] notice.” See FED. RULE CRIM. P. 4(c)(3)(D)(ii) advisory committee’s note.

Thus, had Rule 4(c)(3)(D)(ii) been intended to encompass literally “any … means

that gives notice,” as the district court concluded, then the other provisions in Rule

4(c)(3)(D), which each describe permissible means of service, would have been

unnecessary—as would have been the detailed explanations in the advisory

committee note. See 2A NORMAN SINGER, SUTHERLAND ON STATUTES &

STATUTORY CONSTRUCTION § 47:17 (if the drafters “intended the general words to

be used in their unrestricted sense, [they] would have made no mention of the

particular words” in the list, and instead “would have used only one compendious

expression”). Indeed, not only would the district court’s interpretation render the

enumerated means of service superfluous as a textual matter, but it would relieve

the government of any incentive to comply with international agreements

governing the service of criminal summons, risking harm to foreign relations and

reciprocal treatment of U.S. companies by foreign governments.

Moreover, by including any means “stipulated by the parties” as a

permissible means of service, see FED. R. CRIM. P. 4(c)(3)(D)(ii)(a), the Rule


22

makes clear that notice of a criminal summons, by itself, is not sufficient to

constitute service. Any defendant that could stipulate to a means of service of a

summons would already have notice of the summons, rendering service complete

under the district court’s interpretation and thereby eliminating the need for the

stipulation contemplated by the Rule. The district court’s interpretation thus

doubly renders the stipulation provision superfluous.

(b) The District Court’s Interpretation Is Inconsistent

With The Canon Of Ejusdem Generis

The district court similarly erred in failing to construe the general words

“any other means that gives notice,” as used in subdivision (c)(3)(D)(ii), in light of

both subdivision (c)(3)(D)(i), which precedes it, as well as the “non-exhaustive list

[of] permissible means” that follows it. FED. R. CRIM. P. 4(c)(3)(D)(ii) & advisory

committee’s note. The canon of ejusdem generis provides that “[w]here general

words follow specific words in a statutory enumeration, the general words are

construed to embrace only objects similar in nature to those objects enumerated by

the preceding specific words.” Circuit City Stores, Inc. v. Adams, 532 U.S. 105,

114-15 (2001) (quotation omitted). It is likewise well established that ejusdem

generis “applies equally to the opposite sequence, i.e., specific words following

general ones, to restrict application of the general terms to things that are similar to

those enumerated.” 2A NORMAN SINGER, SUTHERLAND ON STATUTES &

STATUTORY CONSTRUCTION § 47:17 (7th ed. 2016).


23

Here, the general words “any other means that gives notice” both precede

and follow the specific means of permissible service enumerated in Rule

4(c)(3)(D), doubly triggering the canon of ejusdem generis. All of those

enumerated means are formal processes that respect domestic and foreign law and

procedure, and are otherwise legal and equitable. See FED. R. CRIM. P.

4(c)(3)(D)(i), (ii)(a)-(c). Accordingly, the “other means that give[] notice” under

subdivision (c)(3)(D)(ii) must likewise respect domestic and foreign law and

procedure and must not violate other legal and equitable principles—including the

rule that a special appearance is not a vehicle for service, see supra, at 13-18.

For all these reasons, the district court erred in interpreting amended Rule 4

to permit service of a criminal summons on specially-appearing counsel.

B. Application Of Amended Rule 4 To The Pangang Companies

Would Be Unjust

Even assuming that Rule 4(c)(3)(D)(ii) permits service through specially-

appearing attorneys (it does not), the district court separately abused its discretion

in concluding that application of the Rule in this case is “just.” Add. 7-10. Chief

Justice Roberts transmitted amended Rule 4 to Congress with the instruction that,

as with “nearly all amendments to the Federal Rules of Criminal Procedure,”

United States v. Woods, 399 F.3d 1144, 1147 (9th Cir. 2005), it be applied “in all

proceedings in criminal cases commenced” after its effective date (December 1,

2016), but to “all proceedings then pending” only “insofar as just and practicable”


24

(ER42). Because this case was pending as of December 1, 2016, it applies here

only “insofar as just and practicable.” See, e.g., Woods, 399 F.3d at 1147

(remanding to district court for determination whether application of amended

Rule 33 was “just and practicable”). Whether to apply an amended Federal Rule to

a pending case is a discretionary determination, see United States v. Ross, 372 F.3d

1097, 1105 n.6 (9th Cir. 2004), and the district court’s ruling here constitutes a

“clear abuse of discretion,” warranting mandamus relief, see Hernandez, 604 F.3d

at 1099.

Contrary to the district court’s conclusion (Add. 10), application of amended

Rule 4 in this proceeding is not “just.” The government made successive improper

attempts to serve the Pangang Companies under the prior version of Rule 4,

prompting the Quinn Emanuel attorneys to enter—without objection from the

government—a special appearance on behalf of the Pangang Companies solely to

contest service. After the government determined it was unable to comply with the

existing Rule, it initiated the amendment process, and, once successful, sought to

use the very special appearance necessitated by its past improper attempts at

service in order effectuate service under the amended Rule.

The injustice is particularly evident here because the government never

suggested during the amendment process that a specially-appearing counsel could

be a vehicle for service of a summons on its client. When the Quinn Emanuel


25

attorneys entered their special appearance in 2012, there was no precedent for

service on a specially-appearing attorney. In lobbying the Advisory Committee to

amend Rule 4, the government never advocated service on specially-appearing

counsel, and indeed expressly represented that special appearances would remain

viable in at least certain contexts. See supra, at 17-18. Consequently, there was no

reason to think that the government would take the position that the Rule, which is

silent on the matter, would somehow sub silentio abrogate centuries-old precedent

that special appearances may not be a vehicle for service of a criminal summons.

Had there been any indication that the amended Rule 4 would permit service

on specially-appearing counsel, the Quinn Emanuel attorneys could have

withdrawn their special appearance—first entered in 2012 and long dormant given

that the government had made no efforts to serve the Pangang Companies in recent

years. Instead, the government sought to utilize this relationship, disrupting the

Quinn Emanuel attorneys’ relationship with their client. See ER53-54 (after Quinn

Emanuel attorneys received summonses, “[i]n light of their previous understanding

of the meaning of a special appearance, our clients were sufficiently concerned that

they consulted with two other law firms to evaluate how they should proceed”).

Under these circumstances, the application of amended Rule 4 is not just,

and the district court clearly abused its discretion in concluding otherwise.


26

II. THE OTHER BAUMAN FACTORS FAVOR MANDAMUS RELIEF

The remaining Bauman factors, to the extent they are applicable here,

uniformly favor mandamus relief from the district court’s erroneous and

unprecedented ruling.

A. The Pangang Companies Have No Other Means Of Challenging

The District Court’s Unprecedented Ruling

The first Bauman factor—whether the petitioner has other means of

obtaining the relief sought—supports granting the petition because if the Court

determines that it lacks jurisdiction over the Pangang Companies’ direct appeal

(No. 17-10318) under the collateral order doctrine, the Pangang Companies will

have no other means of immediately contesting the district court’s ruling that they

were served through delivery of the summons to their specially-appearing counsel.

The finality requirement of 28 U.S.C. § 1291 generally “prohibits appellate

review until after conviction and imposition of sentence.” Midland Asphalt Corp.

v. United States, 489 U.S. 794, 798 (1989). Moreover, “an interlocutory appeal

pursuant to 28 U.S.C. § 1292(b) … is not available in a criminal proceeding.”

United States v. Guerrero, 693 F.3d 990, 998 (9th Cir. 2012). And if the Pangang

Companies successfully defend the charges against them, “there would be no

appeal at all of the [district] court’s construction” of Rule 4(c)(3)(D)(ii)—such that

this important issue would escape prompt appellate review, depriving not only the

parties here but also future litigants of an authoritative determination of the reach


27

of amended Rule 4. This consideration also favors exercise of this Court’s

supervisory mandamus authority now. Perry, 591 F.3d at 1158.

Accordingly, here, the writ is “‘not being used as a substitute for the regular

appeals process,’” In re United States, 791 F.3d 945, 959 (9th Cir. 2015) (quoting

Cheney, 542 U.S. at 380-81), and in the event the Court determines it lacks

collateral order jurisdiction over the Pangang Companies’ direct appeal, mandamus

is their only means of contesting the district court’s interpretation of new Rule

4(c)(3)(D)(ii).

B. The Pangang Companies Will Suffer Harm That Is Not

Correctable On Appeal From A Final Judgment

The Pangang Companies will also suffer harm that is not correctable on

appeal after final judgment—the second Bauman factor—if the district court’s

order is left in place, favoring exercise of this Court’s mandamus jurisdiction. A

defendant has no obligation to appear in court and participate in judicial

proceedings until it is properly served with process. See Murphy Brothers, Inc. v.

Michetti Pipe Stringing, Inc., 526 U.S. 344, 347 (1999) (“An … entity named as a

defendant is not obliged to engage in litigation unless notified of the action, and

brought under a court’s authority, by formal process.”) (emphasis added). Once

served, though, “the coercive power of the state is immediately brought to bear” on

a criminal defendant. Van Cauwenberghe v. Biard, 486 U.S. 517, 525 (1988).

Here, the district court has short-circuited these important procedures, subjecting


28

the Pangang Companies to the “coercive power” of the U.S. government without

enforcing any limitation on the government’s ability to haul a foreign organization

into criminal court, all while condoning the government’s interference with the

Pangang Companies’ relationship with the specially-appearing Quinn Emanuel

attorneys. This abdication of a judicial role in policing the means of service of a

criminal summons effectively permits the government to determine unilaterally

and on an ex parte basis whether service was effective. Post-judgment review

could not “‘afford effective relief’” from this harm. Perry, 591 F.3d at 1157

(quoting In re Cement, 688 F.2d at 1302)).

In addition, only after protracted and costly litigation in a foreign country,

including a criminal trial that would likely last several months, would the Pangang

Companies be able to pursue a post-judgment appeal challenging the district

court’s unprecedented ruling. As this Court has recognized, “saving of an

expensive and protracted trial that leads to nowhere but to a complete retrial”

favors exercise of mandamus jurisdiction. Pacific Car & Foundry Co. v. Pence,

403 F.2d 949, 953 (9th Cir. 1968); see also, e.g., In re Cooper, 971 F.2d 640, 641

(11th Cir. 1992) (“reversal by this court after the defendants have been forced to

endure full discovery, full litigation, and a full trial is scarcely adequate”) (internal

quotation marks omitted), superseded on other grounds by FED. R. CIV. P. 4(m).


29

This concern is particularly acute in the circumstances here, where the district

court’s error bears on whether the criminal proceedings should even be occurring.

C. This Petition Raises A Significant Issue Of First Impression

Concerning Amended Rule 4

Finally, a writ of mandamus is appropriate here under the fifth Bauman

factor—whether the district court’s order raises new and important problems or

issues of first impression—because this petition presents an important issue

concerning interpretation of a new provision of the Federal Rules of Criminal

Procedure.7 This Court has repeatedly recognized that “the need to resolve a

significant question of first impression” favors “exercise of [the Court’s]

supervisory mandamus authority.” Perry, 591 F.3d at 1158-59; accord City of Las

Vegas v. Foley, 747 F.2d 1294, 1296 (9th Cir. 1984); In re Cement Antitrust Litig.,

688 F.2d 1297, 1304 (9th Cir. 1982). And the Supreme Court has held that

mandamus jurisdiction is specifically appropriate to address new applications of

the Federal Rules. See, e.g., Schlagenhauf v. Holder, 379 U.S. 104, 111 (1964)

7 The fourth and fifth Bauman factors—whether the district court’s error is

frequently repeated and whether the district court’s order raises an important issue

of first impression—“are rarely, if ever, present at the same time.” Admiral Ins.

Co. v. U.S. Dist. Ct., 881 F.2d 1486, 1491 (9th Cir. 1989). Because this case raises

a significant question of first impression, thus satisfying the fifth Bauman factor,

the fourth Bauman factor (oft-repeated error) is inapplicable here. See Special Inv.,

Inc. v. Aero Air, Inc., 360 F.3d 989, 994 (9th Cir. 2004) (“[R]arely if ever will a

case arise where all the guidelines point in the same direction or even where each

guideline is relevant or applicable.”); see also id. at 995 (granting petition for writ

of mandamus where, “although this case does not involve an oft-repeated error, it

does pose a novel one”).


30

(mandamus jurisdiction proper where petition raised issues of first impression

concerning construction and meaning of Federal Rule of Civil Procedure 35).

The district court’s order is the first to apply amended Rule 4(c)(3)(D),

which amends the Rules to provide for service of a criminal summons on

organizational defendants outside the United States. The district court applied it,

moreover, in an unprecedented and extraordinary manner—to allow service of a

summons on a criminal defendant by delivery to attorneys who have entered a

special appearance for the specific purpose of challenging service. This

interpretation renders mutual or multilateral agreements on criminal legal

assistance irrelevant, risking harm to foreign relations while encouraging foreign

sovereigns to use equally boundless methods of service on U.S. corporations.

Accordingly, this petition raises a significant issue of first impression

concerning service of a criminal summons on organizations outside the United

States, which is properly reviewed under this Court’s supervisory mandamus

authority. Perry, 591 F.3d at 1158-59; Schlagenhauf, 379 U.S. at 111.

CONCLUSION

The petition should be granted.


31

DATED: August 22, 2017 Respectfully submitted,

s/ Kathleen M. Sullivan_______

Robert P. Feldman

Andrew P. March


& SULLIVAN, LLP

555 Twin Dolphin Drive, 5th Floor

Redwood Shores, CA 94065

(650) 801-5000


William B. Adams


& SULLIVAN, LLP

51 Madison Avenue, 22nd Floor

New York, NY 10010

(212) 849-7000

John M. Potter


& SULLIVAN, LLP

50 California Street, 22nd Floor


(415) 875-6600

Attorneys for Specially-Appearing Petitioners


32

STATEMENT OF RELATED CASES

Pursuant to Ninth Circuit Rule 28-2.6, Petitioners state that the following

case is related: United States v. Pangang Group Company, Ltd., No. 17-10318

(9th Cir.).


33

STATEMENT CONCERNING ORAL ARGUMENT

Pursuant to Fed. R. App. P. 34(a)(1), Petitioners state that oral argument

should be permitted because this petition presents an issue of first impression

concerning interpretation of new Federal Rule of Criminal Procedure

4(c)(3)(D)(ii).


34

CERTIFICATE OF COMPLIANCE WITH FRAP 32(c)(2) AND CIRCUIT

RULES 21-2(c)

Pursuant to Federal Rule of Appellate Procedure 32(c)(2) and Circuit Rule

21-2(c), the foregoing response is proportionately spaced, has a typeface of 14

points or more and is not more than 30 pages.

s/ Kathleen M. Sullivan______________________ August 22, 2017

Attorney for Petitioners-Defendants Date


35

CERTIFICATE OF SERVICE

I, Kathleen M. Sullivan, a member of the Bar of this Court, hereby certify

that on August 22, 2017, I electronically filed the foregoing with the Clerk of the

Court for the United States Court of Appeals for the Ninth Circuit by using the

appellate CM/ECF system.

I further certify that I caused the foregoing to be served on counsel for the

United States by First-Class Mail, postage prepaid, and by electronic mail, to the

following addresses:

Jeffrey Shih

David Countryman

United States Attorney’s Office

450 Golden Gate Ave

11th Floor


[email protected]

[email protected]

Jennifer Kennedy Gellie

Richard S. Scott

United States Department of Justice

600 E St, NW

Washington DC 20004

[email protected]

[email protected]

Attorneys for Real-Party-In-Interest

United States of America

I further certify that I caused the foregoing to be hand-delivered by courier

to the following interested party:


36

Hon. Jeffrey S. White

United States District Court

Northern District of California

Ronald V. Dellums Federal Building

& United States Courthouse

1301 Clay Street

Suite 400 S

Oakland, CA 94612

s/ Kathleen M. Sullivan______



ADDENDUM


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NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

Plaintiff,

v.

PANGANG GROUP COMPANY, LTD., et al.

Defendants.

Case No. 11-cr-00573-JSW-7, 8, 9, 10 ORDER ON MOTION TO QUASH AND DEFERRING RULING ON MOTION FOR SANCTIONS

Re: Dkt. Nos. 998, 1013

Now before the Court for consideration is the Government’s motion for sanctions, in

which the Government asks the Court to issue an Order to Show Cause to Pangang Group

Company, Ltd., Pangang Group Steel Vanadium & Titanium Company, Ltd., Pangang Group

Titanium Industry Company, Ltd., and Pangang Group International Economic & Trading

Company (collectively the “Pangang Group Defendants”), directing these entities to show cause

why they should not be sanctioned for their failure to appear at two court hearings. Also before

the Court for consideration is the Pangang Group Defendants’ third motion to quash service. The

Pangang Group Defendants are specially appearing through Robert P. Feldman, Esq. and John M.

Potter, Esq. of Quinn Emanuel Urquhart & Sullivan, LLP (“Quinn Emanuel”).

The Court has considered the parties’ papers, relevant legal authority, the record in this

case, and it has had the benefit of oral argument. For the reasons set forth in this Order, the Court

DENIES the Pangang Defendants’ motion to quash, and it DEFERS ruling on the Government’s

motion for an order to show cause.

//

Case 4:11-cr-00573-JSW Document 1024 Filed 07/18/17 Page 1 of 11

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BACKGROUND

The Court has set forth the facts underlying this case in several prior orders, and it shall not

repeat them here.1 In 2012, the Government purported to serve the Pangang Group Defendants

with summonses. On March 1, 2012, the Pangang Group Defendants specially appeared through

Mr. Feldman and Mr. Potter to challenge service of summonses issued on February 8, 2012. On

July 23, 2012, the Court granted the Pangang Group Defendants’ first motion to quash, on the

basis that the Government had not complied with the terms of Federal Rule of Criminal Procedure

4 (“Rule 4”). See generally United States v. Pangang Group Co., Ltd., 879 F. Supp. 2d 1052

(N.D. Cal. 2012) (“Pangang Group”).

The Government made another attempt to serve the Pangang Group Defendants with

summonses, and the Pangang Group Defendants, through Mr. Feldman and Mr. Potter, filed a

second motion to quash. On April 8, 2013, the Court granted, in part, and denied as moot, in part,

that motion. (See Dkt. No. 293 (“Order on Second Motion to Quash”).) The Court once again

found that the Government had not complied with the provisions of Rule 4. Although the

Government asked the Court to issue a terminating order, it withdrew that request in May 2014.

On December 1, 2016, an amended version of Rule 4 took effect.

On December 20, 2016, the Government obtained reissued summonses to the Pangang

Group Defendants, which set an arraignment date on January 30, 2017. According to the record,

on January 4, 2017, FBI Special Agent Cynthia Ho hand-delivered the summonses to Todd

Weizhong Wang at 2 Tower Center Boulevard, 10th Floor, East Brunswick, New Jersey. (Dkt. No.

998-1, Declaration of Cynthia Ho (“Ho Decl.”), ¶ 2.) Mr. Wang is the President of Angang

America, Inc. (“AAI”). (Ho Decl., ¶¶ 4-5.) Although the parties dispute the exact nature of the

relationship between AAI and the Pangang Group Defendants, the record shows they share a

common “parent” organization, Angang Group Corporation. (See Dkt. No. 1007, Declaration of

Sun Ce Jun, ¶ 24; Dkt. No. 1006, Declaration of Owen D. Nee, Jr., ¶¶ 13-31; see generally Dkt.

1 The Ninth Circuit also set forth the underlying facts in its opinion affirming, in part, and reversing, in part, the judgment against co-defendants Walter Liew and USA Performance Technology, Inc.. See United States v. Liew, 856 F.3d 585, 589-92 (9th Cir. 2017).


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No. 1008, Declaration of Wang Qizhi.) According to Special Agent Ho, Mr. Wang “stated that he

was not sure which individuals in China should receive the summonses and that he would forward

the summonses to his management in China to handle delivery of the summons to the appropriate

individuals.” (Ho Decl., ¶ 5.)2

Special Agent Ho also purported to serve the reissued summonses on Mr. Potter and Mr.

Feldman by email and certified mail. (Id., ¶ 6, Exs. B-C.) Mr. Feldman responded by stating that

he and his firm “were not authorized to accept the summonses in 2012. We are not authorized to

accept service of the summonses now. Nor are we obligated to send the summonses to Pangang

and we will not do so.” (Id., ¶ 7, Ex. D (Letter dated Jan. 17, 2017 from Robert Feldman to

AUSA John H. Hemann).) Mr. Feldman also attests that neither he nor anyone else at his firm has

“transmitted the summonses in question to any of the Pangang Group” Defendants. (Dkt. No.

1009, Declaration of Robert Feldman (“Feldman Decl.”), ¶ 9.)

The Pangang Group Defendants did not appear for the arraignment on January 30, 2017,

and they did not appear at a status set before the undersigned on February 14, 2017. At the latter

hearing, the Government stated its intent to file a motion for sanctions, and the Court issued a

briefing schedule. (See Dkt. Nos. 993, 995.) The Government filed its motion for sanctions on

March 13, 2017. The Pangang Group Defendants then filed an application to set a briefing

schedule on a third motion to quash and asked that the Court deny the Government’s motion for

sanctions as moot. (See Dkt. No. 1000.) The Court granted the request to set a briefing schedule

on a motion to quash, and stated that it would address both motions in a cross-motion format.

(Dkt. No. 1003.)

ANALYSIS

A. The Provisions of Revised Rule 4.

This Court’s ruling on the motions to quash, among other cases, prompted the Department

of Justice (“DOJ”) to propose amendments to Rule 4. (See Dkt. No. 1013, Third Motion to Quash,

2 At the hearing on these motions, the Pangang Group Defendants objected to these statements on the basis that they were inadmissible hearsay and moved to strike them from the record. The Court overruled those objections.


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Ex. A (Letter dated Oct. 25, 2012 from Assistant Attorney General Lanny A. Breuer to the

Honorable Reena Raggi, Chair, Advisory Committee on the Criminal Rules at 1, 3-4 (“Breuer

Letter”); Dkt. No. 1002-2, Memorandum dated February 20, 2015, from Jonathan J. Wroblewski

to Judge David M. Lawson (“DOJ Memo”) at 1 n.1 (noting that “[d]espite the fact that [the

Pangang Group Defendants were] indicted years ago along with [Walter] Liew, and [have] had

actual notice of the indictment, to date, the United States has been unable to effectively serve

[them] pursuant to the current Rule 4”).)

Rule 4 now provides, in part:

(C) A summons is served on an organization in a judicial district of the United States 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. If the agent is one authorized by statute and the statute so requires, a copy must also be mailed to the organization.

(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 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)(C)-(D).

Before Rule 4(c)(3)(C) was amended, it contained two requirements, a delivery

requirement and a mailing requirement. See, e.g., Pangang Group, 879 F. Supp. 2d at 1057. The

Advisory Committee described key amendments to Rule 4(c)(3)(C) as follows:

First, like Civil Rule 4(h), the amended provision does not require a separate mailing to the organization when delivery has been made in the United States to an officer or to a managing or general agent. …


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Second, also like Civil Rule 4(h), the amendment recognizes that service outside the United States requires separate consideration, and it restricts Rule 4(c)(3)(C) and its modified mailing requirement to service on organizations within the United States. Service upon organizations outside the United States is governed by new subdivision (c)(3)(D).

These two modifications of the mailing requirement remove an unnecessary impediment to the initiation of criminal proceedings against organizations that commit domestic offenses but have no place of business or mailing address within the United States. Given the realities of today’s global economy, electronic communication, and federal criminal practice, the mailing requirement should not shield a defendant organization when the Rule’s core objective – notice of pending criminal proceedings – is accomplished.

Fed. R. Crim. P. 4, Advisory Committee Notes, 2016 Amendments.

With respect to Rule 4(c)(3)(D), according to the Advisory Committee notes, the “new

subdivision states that a criminal summons may be issued 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.” Id.

(emphasis added); see also id. (subdivision 4(c)(3)(D)(ii) “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 manner that ‘gives notice’”)(emphasis added).

B. The Court Denies the Motion to Quash.

1. The Court Finds the Government Served the Pangang Group Defendants Using a “Means that Gives Notice.”

The Government relies on delivery of the summonses to Mr. Wang and to Mr. Feldman

and Mr. Potter to show it has served the Pangang Group Defendants. It contends delivery of the

summonses to those individuals satisfies the provisions of Rule 4(c)(3)(D)(ii), because both of

those methods are “means that give[] notice[.]”3 Use of these methods presumes the Pangang

3 The Government does not rely on any of the methods set forth in subsections (a) through (c) of that subdivision, although it did attempt to serve the Pangang Group Defendants through a Mutual Legal Assistance Agreement between the United States and the People’s Republic of China (“PRC”). However, the PRC’s Central Authority denied the request for assistance. (Ho Decl., ¶¶ 14-15, Exs. G-H.)


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Group Defendants have some form of relationship with these individuals such that the Court can

infer that any or all of these individuals provided the Pangang Group Defendants with notice of

the summonses. For the reasons set forth below, the Court concludes that the record supports a

finding that the Pangang Group Defendants received notice of the summonses from the Quinn

Emanuel firm, even if they did not receive the actual documents. Accordingly, the Court does not

reach the Government’s alternative argument that it also served the Pangang Group Defendants

through Mr. Wang.

It is undisputed that the Pangang Group Defendants had a pre-existing relationship with

Mr. Potter and Mr. Feldman, who represented them on the first two motions to quash. In addition,

during the amendment process, Mr. Feldman and Mr. Potter submitted a letter to the Advisory

Committee, in which they noted that “[a]mong our clients are the Pangang Group Company and

affiliated entities.” (See Gov. Opp. Br., Ex. 3 (Letter dated February 13, 2015 from Mr. Feldman

and Mr. Potter to Judge Raggi, Sara Sun Beale and Nancy J. King (“Feldman Letter”) at 1.) Mr.

Feldman and Mr. Potter urged the Advisory Committee not to adopt the proposed amendment:

There is a fundamental problem with this “notice only” approach: though apparently not the drafter’s intent, the proposed rule may be argued to insulate service from judicial review. The proposed advisory committee notes state that “although it is presumed that the enumerated means will provide notice, whether actual notice has been provided may be challenged in an individual case.” Practically speaking, however, this could be impossible under the proposed regime: the very act of challenging service might be said to conclusively establish the notice that would make service complete.

(Id. at 2.)

The DOJ responded, in part, that

this is not a flaw in the proposed amendment, it is the point of the amendment. If the defendant corporation has notice of a summons,

The Government also attempted to serve the Pangang Group Defendants by serving copies of the summonses on Corporation Service Company, which was listed as AAI’s registered agent for service of process. However, the Government states that it received notice from Corporation Service Company that it is not, in fact, AAI’s agent. (Dkt. No., 1015-4, Declaration of Cynthia Ho, dated May 18, 2017 (5/18 Ho Decl.”), ¶¶ 2-4, Exs. 4, 6; Ho Decl. ¶ 13, Ex. J.) At the hearing, the Government stated that it will not rely on these facts to show it served the Pangang Group Defendants.


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it ought to be considered served, and there ought not to be an avenue to present a factual claim that is, by definition, without merit. By contrast, if a corporate defendant seeks to raise some other claim regarding a defect in service, we do not believe anything in the proposed amendment would alter existing rules governing the availability of a “special appearance” to contest service.

For example, nothing in the proposed rule would alter current law regarding whether a corporate defendant could specially appear to contest the constitutionality of the amended Rule 4, whether the rule applied retroactively, or whether the rule applied to a particular defendant.

The purpose of a “special appearance” is to avoid automatically waiving threshold issues by operation of law – not to prevent fact finding. … When a party makes a special appearance, any facts that a 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.

(DOJ Memo at 2-3 (emphasis in original).)

Based on the record, the subcommittee presiding over the amendments to Rule 4 “agreed

with the [DOJ’s] response:”

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. If the amendment were adopted, there would be, however, objections an institutional defendant might assert by a special appearance (such as a constitutional attack on Rule 4, an objection to retroactive application of the amendment, or a claim that an institutional defendant has been dissolved).

(Dkt. No. 1021-1, Advisory Committee on Criminal Rules Minutes (“Advisory Committee

Minutes”), March 16-27, 2015, at 11; see also id. at 13 (“the Committee voted unanimously to

approve the proposed amendment as published and transmit it to the Standing Committee”).

At the hearing, the Pangang Group Defendants, through counsel, conceded that they have

notice of these proceedings. (See also Feldman Decl., ¶ 7.) Accordingly, the Court concludes that

the Government has met its burden to show that it used a “means that gives notice” to effect

service on the Pangang Group Defendants.

2. The Court Concludes It is Just and Practicable to Apply Amended Rule 4.

At the time Rule 4 was amended, the case against the Pangang Group Defendants had been


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pending since February 7, 2012. As set forth in the Order accompanying the amendments, “the

foregoing amendments shall govern in all proceedings in criminal cases thereafter commenced

and, insofar as just and practicable, all proceedings then pending.” (Third Mot. to Quash, Ex. D

(Excerpts of Transmittal of Amendments from Supreme Court to Congress, at 3).) The Ninth

Circuit has stated that “[t]his language is not unique -- it has been submitted by the Supreme

Court with nearly all amendments to the Federal Rules of Criminal Procedure -- and indicates the

intent that the rules be applied to pending cases only if such application would be ‘just and

practicable.’” United States v. Woods, 399 F.3d 1144, 1147 (9th Cir. 2005) (finding that

application of an amendment to Rule 33 did not violate ex post facto clause and remanding for

consideration of whether application of the amendment would be just and practicable); see also 28

U.S.C. § 2704(a) (“The Supreme Court may fix the extent such rule shall apply to proceedings

then pending, except that the Supreme Court shall not require the application of such rule to

further proceedings then pending to the extent that, in the opinion of the court in which such

proceedings are pending, the application of such rule in such proceedings would not be feasible or

would work injustice, in which event the former rule applies.”).

In general, courts should apply “‘procedural rules as they exist at the time of decision, as

long as no manifest injustice results.’” United States v. Moses, No. CR 05-061 E BLW, 2006 WL

581191, at *3 (D. Idaho March 8, 2006) (quoting United States v. Bowler, 252 F.3d 741, 746 (5th

Cir. 2005)); cf. Friel v. Cessna Aircraft Co., 751 F.2d 1037, 1039 (9th Cir. 1985) (“It is a rule of

construction that statutes are ordinarily given prospective effect. But when a statute is addressed

to remedies or procedures and does not otherwise alter substantive rights, it will be applied to

pending cases.”).

The Government has issued new summonses, and it does not argue amended Rule 4 should

be applied to its prior efforts to serve the Pangang Group Defendants. The case was pending at the

time of the amendment, and the Pangang Group Defendants argue it would not be just and

practicable to apply the amendment in this case.4 Accordingly, the Court will consider that

4 The Pangang Group Defendants take the position that serving a specially appearing lawyer is a “defect in service.” In their brief, and at oral argument, the Pangang Group Defendants set


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argument. Cf. Bowler, 252 F.3d at 744 (interpreting standard language used to transmit

amendments to apply to pending cases and citing cases reaching same conclusion).

The Pangang Group Defendants do not argue that it is not practicable to apply the rule.

Rather, their focus is on why it is unjust to apply amended Rule 4. They note that the

Government, in briefing or argument on the prior motions to quash or during the amendment

process, has never argued that it could or would use a specially appearing lawyer to serve a

defendant. In a related argument, the Pangang Group Defendants assert in a conclusory fashion

that the Government’s conduct “disrupted” their relationship with the Quinn Emanuel firm and

required them to consult with two other law firms to determine how to proceed. (Dkt. No. 1019,

Reply Br. at 6:13-15 (citing Feldman Decl. ¶¶ 6-7).)

The Pangang Group Defendants have not raised a constitutional challenge to application of

the Rule; that is, they do not argue application of amended Rule 4 in this fashion violates their

Sixth Amendment right to counsel. Further, there is nothing in the Rule that precludes them from

relying on specially appearing counsel to raise such challenges. Thus, they have not explained

how they are prejudiced by application of the Rule, other than the fact that they may be required to

defend the charges against them on the merits. Cf. Bowler, 252 F.3d at 746 (finding it would not

be just and practicable to apply amended rule Rule 33, governing motions for new trial, where

defendant would have been required to file a motion five months before rule came into effect for

the motion to be considered timely under amended provisions of that rule); Ortaliza v. General

Mills Corp., 56 F.3d 72, 1995 WL 316927, at *2 (9th Cir. May 24, 1995) (concluding it was just

and practicable to apply amended version of rule, so that party would not lose right to appeal).

Moreover, there is nothing in the transmittal language that suggests the evaluation of

forth a hypothetical situation where the government used some other means to purportedly serve a defendant, and that defendant then entered a special appearance to contest service. The Pangang Group Defendants argue that, under the Government’s view, it would be permissible to serve the specially appearing lawyer with a summons and moot out the question of whether a court could quash service. (See Third Motion to Quash at 17:19-22.) Although that might moot an argument about notice, the Court concludes it would not necessarily preclude that defendant from “rais[ing] some other claim regarding a defect in service,” including whether service on specially appearing counsel is proper or “just and practicable.”


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whether it would “just and practicable” to apply an amended criminal rule must be limited to a

consideration of whether it would be “just and practicable” to a defendant. During the amendment

process, the Chair of the subcommittee on the amendments noted that “the proposed amendment is

intended to fill a gap in the current rules, which provide no means of service on an institutional

defendant that has committed a criminal offense in the United States but has no physical presence

here.” (Advisory Committee Minutes at 10-11.) If the Court does not apply the new rule, one of

the purposes of the amendment would be frustrated, because the Government would not be able to

pursue the charges at a trial on the merits.5 If, however, the Court applies the new rule, the effect

is to bring the Pangang Group Defendants into court, where they may raise any and all challenges

they may have to the substantive charges. Under these circumstances, the Court concludes that it

would be neither unjust nor impracticable to apply amended Rule 4 in this case. Cf. G.F. Co. v.

Pan Ocean Shipping Co., Ltd., 23 F.3d 1498, 1502 (9th Cir. 1994) (addressing whether it would

be just and practicable to apply amended version of Federal Rule of Civil Procedure 15 and stating

“the general purpose of the federal Rules is to minimize technical obstacles to a determination of

the controversy on its merits”) (internal brackets, quotations and citation omitted).

CONCLUSION

For the foregoing reasons, the Court DENIES the Pangang Group Defendants’ third

motion to quash service. The Court HEREBY ORDERS the Pangang Group Defendants to appear

before the duty magistrate judge on Monday, September 18, 2017, at 9:30 a.m., to be arraigned on

the charges set forth in the Third Superseding Indictment. If the Pangang Group Defendants fail

to appear on that date, the Court will issue a ruling on the motion for sanctions.

//

//

//

//

5 By this reference, the Court does not suggest the Pangang Group Defendants have committed such an offense. At this stage, they are merely alleged to have done so.


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Documents

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