In re Grand Jury Subpoenas Returnable December 16, 2015, No. 16-266 (2d Cir. 2017)

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Justia Opinion Summary

A Chinese construction company and seven of its employees challenged the district court's order denying their motion to quash subpoenas requiring the employees to appear before a grand jury. The Second Circuit affirmed the order, holding that the 2009 Bilateral Agreement between the United States and the People's Republic of China (PRC) incorporates a 2003 Diplomatic Note that imposes a registration requirement on construction personnel. In this case, the Executive Branch reasonably interpreted the relevant agreements as requiring construction personnel to register with the State Department before receiving immunity and because that condition was not satisfied here, the employees were not entitled to diplomatic immunity.

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16 266 cv In re Grand Jury Subpoenas Returnable December 16, 2015 1 2 In the 3 United States Court of Appeals 4 For the Second Circuit ________ AUGUST TERM, 2016 ARGUED: FEBRUARY 13, 2017 DECIDED: SEPTEMBER 8, 2017 No. 16 266 cv IN RE GRAND JURY SUBPOENAS RETURNABLE DECEMBER 16, 2015 ________ 5 6 7 8 9 10 11 12 13 14 15 16 17 26 Appeal from the United States District Court for the Eastern District of New York. No. 15 mc 2346 – John Gleeson, District Judge. ________ Before: WALKER, LIVINGSTON, Circuit Judges, AND BRICCETTI, District Judge. ________ A Chinese construction company (the Company) and seven of 27 its employees (collectively, Appellants) appeal from an order of the 28 United States District Court for the Eastern District of New York 29 (Gleeson, J.) denying their motion to quash subpoenas requiring the 18 19 20 21 22 23 24 25 Judge Vincent L. Briccetti, of the United States District Court for the Southern District of New York, sitting by designation. 2 16 266 cv 1 employees to appear before a grand jury. Appellants argue that the 2 district court erred in concluding that the employees are not entitled 3 to diplomatic immunity because they were not registered with the 4 United States Department of State. Appellants further contend that, 5 even if the employees were required to register, that requirement 6 was satisfied when the employees applied for their visas. Because 7 we conclude that the 2009 Bilateral Agreement between the United 8 States and the People’s Republic of China (PRC) incorporates a 2003 9 Diplomatic Note that imposes a registration requirement on 10 construction personnel, which was not fulfilled here, we AFFIRM 11 the order of the district court. 12 ________ HAROLD J. RUVOLDT, JR. (Cathy A. Fleming & Eric H. Jaso on the brief), Fleming Ruvoldt PLLC, New York, NY, for Appellant. ALEXANDER A. SOLOMON, Assistant United States Attorney (Amy Busa, Douglas M. Pravda & Ian Craig Richardson, Assistant United States Attorneys, on the brief), for Bridget M. Rohde, Acting United States Attorney for the Eastern District of New York, for Appellee. 13 14 15 16 17 18 19 20 21 22 23 ________ 24 JOHN M. WALKER, JR., Circuit Judge: 25 A Chinese construction company (the Company) and seven of 26 its employees (collectively, Appellants) appeal from an order of the 27 United States District Court for the Eastern District of New York 3 16 266 cv 1 (Gleeson, J.) denying their motion to quash subpoenas requiring the 2 employees to appear before a grand jury. Appellants argue that the 3 district court erred in concluding that the employees are not entitled 4 to diplomatic immunity because they were not registered with the 5 United States Department of State. Appellants further contend that, 6 even if the employees were required to register, that requirement 7 was satisfied when the employees applied for their visas. Because 8 we conclude that the 2009 Bilateral Agreement between the United 9 States and the People’s Republic of China (PRC) incorporates a 2003 10 Diplomatic Note that imposes a registration requirement on 11 construction personnel, which was not fulfilled here, we AFFIRM 12 the order of the district court. BACKGROUND 13 14 Because this matter relates to a grand jury investigation, we 15 provide an abbreviated version of the facts and only discuss 16 information that will not compromise the integrity of the underlying 17 grand jury investigation.1 The Company was selected by the PRC to 18 provide construction and related services for Chinese diplomatic On February 16, 2016, we granted Appellants’ unopposed motion under Federal Rule of Criminal Procedure 6(e)(6) to seal this appeal in its entirety because it relates to a grand jury investigation. We have determined, however, that we can resolve the question of diplomatic immunity without disclosing information that would contravene the secrecy of the grand jury proceedings mandated by Rule 6(e). 1 4 16 266 cv 1 and consular missions to the United States pursuant to a 2009 2 Bilateral Agreement between the United States and the PRC 3 (Bilateral Agreement). Under this agreement, the Company brings 4 Chinese nationals into the United States to work on its projects. The 5 Bilateral Agreement provides for qualified individuals to enter the 6 United States pursuant to A 2 or other appropriate visas issued by 7 the Department of State. 8 Seven employees of the Company, construction personnel 9 who were attached to a PRC mission, entered the United States on 10 A 2 and G 2 visas. When these employees were later served with 11 subpoenas requiring them to appear before a grand jury in the U.S. 12 District Court for the Eastern District of New York, Appellants 13 moved, pursuant to 22 U.S.C. § 254(d), to quash these subpoenas on 14 the basis that the employees are entitled to diplomatic immunity. 15 The district court denied that motion and this timely appeal 16 followed. 17 DISCUSSION 18 We must resolve whether, in order to receive diplomatic 19 immunity, the employees were required to register with the State 20 Department upon being attached to a PRC mission and, if so, 21 whether the employees’ visa applications constituted such 22 registration. Appellants argue that they are entitled to diplomatic 23 immunity because: (1) the Bilateral Agreement does not impose a 5 16 266 cv 1 registration requirement as a pre condition to receiving immunity 2 and (2) even if the Bilateral Agreement contains such a requirement, 3 the employees fulfilled it by providing the information required to 4 secure their visas. 5 We review a district court’s denial of a motion to quash a 6 grand jury subpoena for abuse of discretion, see In re Edelman, 295 7 F.3d 171, 173, 175 (2d Cir. 2002), but its interpretation of the terms of 8 a treaty or a diplomatic agreement de novo, see Swarna v. Al Awadi, 9 622 F. 3d 123, 132 (2d Cir. 2010). 10 I. The VCDR, Diplomatic Note, and Bilateral Agreement 11 The resolution of this appeal depends on our interpretation of 12 three related documents: (1) the Vienna Convention on Diplomatic 13 Relations (VCDR); (2) a 2003 diplomatic note circulated by the State 14 Department (Diplomatic Note or Note); and (3) the Bilateral 15 Agreement. 16 The VCDR is an international treaty, signed on April 18, 1961 17 and effective on April 24, 1964 upon the ratification of twenty two 18 states. Now ratified by 191 signatories, the VCDR sets forth the 19 privileges and immunities to which certain diplomatic officials are 20 entitled. The VCDR specifies that “diplomatic agent[s]” are immune 21 from the criminal, civil, and administrative jurisdiction of the 22 receiving State, with only a few exceptions that are not relevant here. 23 See Vienna Convention on Diplomatic Relations, art. 31(1), April 18, 6 16 266 cv 1 1961, T.I.A.S. No. 7502, 500 U.N.T.S. 95 [hereinafter VCDR]; 2 Multilateral Treaties Deposited with the Secretary General, 3 https://treaties.un.org/Pages/ParticipationStatus.aspx (last visited 4 Sept. 7, 2017). The purpose of bestowing these diplomatic privileges 5 under the VCDR is “to ensure the efficient performance of the 6 functions of diplomatic missions.” VCDR, preamble. 7 As is relevant to this appeal, the VCDR requires that “[t]he 8 Ministry for Foreign Affairs of the receiving State . . . shall be 9 notified of . . . the appointment of members of the mission [including 10 administrative and technical staff].” Id., art. 10(1)(a). The State 11 Department has a long standing policy, based on this provision of 12 the VCDR, that all foreign personnel must register with the State 13 Department to be entitled to diplomatic immunity. In 2003, the State 14 Department reminded the Chiefs of Mission of this policy by 15 unilaterally issuing the Diplomatic Note, which reiterated “the 16 requirement, under Article 10 of the VCDR . . . to notify the 17 Department promptly of the arrival or appointment . . . of all 18 members of the missions or consulates.” Appellee’s App. 9. 19 Pursuant to the VCDR, the United States and the PRC have 20 executed a series of bilateral agreements permitting each 21 government to conduct construction work on its embassy and 22 consulate facilities located in the other country. The 2009 Bilateral 23 Agreement, which is relevant here, applies to then “existing bilateral 7 16 266 cv 1 diplomatic and consular locations,” including the PRC embassy in 2 Washington, D.C., the United States embassy in Beijing, China, the 3 United States and PRC consulates, and the PRC Permanent Mission 4 to the United Nations located in New York. Appellants’ App. 45. 5 The Bilateral Agreement specifies that the United States and the 6 PRC, when engaging in construction at these sites in the other 7 country, may use “project related personnel and companies of 8 [their] own choosing” and bring their own nationals to serve as 9 “construction personnel.” Id. at 48. Such personnel “shall be 10 attached . . . to the . . . diplomatic mission as administrative and 11 technical staff” and “shall enjoy the privileges and immunities 12 accorded administrative and technical staff . . . under the VCDR.” 13 Id. at 49. Although the Bilateral Agreement does not explicitly 14 require that construction personnel register with the State 15 Department to receive immunity, it incorporates “relevant 16 diplomatic notes” regarding issues “not addressed.” Id. at 55. 17 Here, the district court determined that the Bilateral 18 Agreement, which recognizes immunity for construction personnel, 19 incorporates the Diplomatic Note, which imposes a registration 20 requirement on construction personnel. Appellants take issue with 21 this determination. We therefore address in this opinion: (1) 22 whether, pursuant to the Diplomatic Note, construction personnel 23 must be registered with the State Department before they are 8 16 266 cv 1 entitled to diplomatic immunity and (2) if so, whether the Bilateral 2 Agreement incorporates the Note, thereby subjecting the Appellants 3 to the registration requirement contained therein. 4 II. Jurisdiction 5 Before proceeding to the merits, however, we first must 6 determine whether we have jurisdiction over this matter. We must 7 consider whether we are deprived of jurisdiction because the denial 8 of Appellants’ motion to quash the subpoenas is not a final 9 judgment of the district court from which an appeal can be taken 10 and whether, even if we possess jurisdiction, prudential 11 considerations counsel against exercising it. 12 Our jurisdiction usually is limited to appeals from final 13 judgments. See 28 U.S.C. § 1291. A final judgment is a judgment 14 that effectively ends the litigation such that there is nothing left to 15 decide. An order disposing of a motion to quash a grand jury 16 subpoena generally is not such a final judgment. See United States v. 17 Punn, 737 F.3d 1, 5 (2d Cir. 2013); United States v. Nixon, 418 U.S. 683, 18 690 91 (1974). There is an exception to the final judgment rule, 19 however, when the order in question meets the requirements of the 20 collateral order doctrine. Under this exception, an appellate court 21 has jurisdiction over a non final judgment “if such order (1) 22 ’conclusively determined the disputed question’; (2) ’resolved an 23 important question completely separate from the merits of the 9 16 266 cv 1 action’; and (3) ‘was effectively unreviewable on appeal from a final 2 judgment.’” In re Air Crash at Belle Harbor, 490 F.3d 99, 109 (2d Cir. 3 2007) (citations omitted). 4 Here, the district court’s order denying the Appellants’ 5 motion meets all three of these requirements. The district court 6 conclusively determined that the employees were not entitled to 7 diplomatic immunity, an issue that is “important” and “completely 8 separate” from the merits of the case. See id. And because the issue 9 of whether these individuals are entitled to immunity determines 10 whether they will be subjected to any further processes in the United 11 States courts, a later recognition of immunity does not mitigate the 12 harm and the order is “effectively unreviewable on appeal from a 13 final judgment.” See id.; cf. Mitchell v. Forsyth, 472 U.S. 511, 525 27 14 (1985) (the collateral order doctrine exception applies to the defenses 15 of double jeopardy, absolute immunity, and qualified immunity 16 because each possesses the same “essential attribute”—the recipient 17 is guaranteed the right not to be subjected to further court 18 processes—which is lost if appellate review awaits a final 19 judgment). Accordingly, under the collateral order doctrine, we 20 have jurisdiction to review the district court’s denial of Appellants’ 21 motion to quash the subpoenas. 22 Although we properly have jurisdiction, Appellants argue 23 that neither we nor the district court should exercise jurisdiction 10 16 266 cv 1 over this matter due to prudential considerations. Specifically, 2 Appellants contend that this case presents a non justiciable political 3 question because Section 16 of the Bilateral Agreement specifies that 4 “the Parties shall first address [any] dispute through informal 5 working level consultations” and that any remaining dispute “shall 6 be resolved through diplomatic channels.” Appellants’ App. 55. 7 This argument is waived. 8 The political question doctrine is prudential in that it 9 implicates the exercise of jurisdiction rather than the question of 10 whether jurisdiction exists. See Baker v. Carr, 369 U.S. 186, 199 200 11 (1962). Because “[w]e ordinarily will not consider issues raised for 12 the first time in a reply brief,” McBride v. BIC Consumer Prods. Mfg. 13 Co., 583 F.3d 92, 96 (2d Cir. 2009), a party may waive a challenge to 14 our jurisdiction on the basis of the political question doctrine if the 15 argument is not properly raised before the district court or in its 16 opening brief on appeal, Hwang Geum Joo v. Japan, 413 F.3d 45, 49 n.2 17 (D.C. Cir. 2005) (rejecting party’s argument regarding political 18 question doctrine because it was “raised for the first time in the 19 appellants’ fourth and final brief on appeal”); 767 Third Ave. Assocs. 20 v. Consulate Gen. of Socialist Fed. Republic of Yugoslavia, 218 F.3d 152, 21 162 (2d Cir. 2000) (rejecting party’s argument regarding political 22 question doctrine because it was raised for the first time on appeal). 11 16 266 cv 1 Appellants first raised this argument in supplemental briefing 2 on appeal after filing both their opening and reply briefs. There is 3 no justifiable excuse for their failure to raise this argument earlier 4 before the district court or this Court. Appellants try to explain their 5 delay in raising the political question argument by pointing to a 6 series of diplomatic notes recently exchanged between the United 7 States and the PRC that further evince a disagreement as to the 8 interpretation of the Bilateral Agreement, purportedly rendering this 9 dispute a political question pursuant to Section 16. But the 10 underlying basis of this claim—Section 16 of the Bilateral 11 Agreement—could have supported Appellants’ political question 12 argument from the outset of this case. 13 Having concluded that we properly have jurisdiction and that 14 Appellants have waived their argument that we should not exercise 15 our jurisdiction based on prudential considerations, we now turn to 16 the merits of the appeal. 18 Registration of the employees was a pre condition for diplomatic immunity 19 The parties agree that the employees were present in the 20 United States pursuant to the Bilateral Agreement and that the 21 Agreement itself does not explicitly contain a registration 22 requirement. But the Bilateral Agreement also incorporates 23 “relevant diplomatic notes” regarding issues “not addressed.” 24 Appellants’ App. 55. The question, therefore, is whether the 17 III. 12 16 266 cv 1 Bilateral Agreement imposes a registration requirement as a 2 pre condition to immunity by incorporating the Diplomatic Note. 3 As a general matter, “[t]he clear import of treaty language controls 4 unless application of the words of the treaty according to their 5 obvious meaning effects a result inconsistent with the intent or 6 expectations of its signatories.” Sumitomo Shoji Am., Inc. v. Avagliano, 7 457 U.S. 176, 180 (1982) (citation omitted). In determining the intent 8 of the signatories, we customarily give “great weight” to the 9 Executive Branch’s interpretation of such a treaty. See Swarna, 622 10 F.3d at 133. 11 Appellants argue that the clear import of the Bilateral 12 Agreement and the Diplomatic Note is that construction personnel 13 are not required to register in order to receive immunity because: (1) 14 the Note does not condition immunity on the registration of any 15 foreign personnel, including construction personnel and (2) even if it 16 does, the Note cannot implicitly and unilaterally amend the Bilateral 17 Agreement. We address each of these arguments in turn. 19 A. Construction personnel must register to receive immunity under the Diplomatic Note 20 Appellants contend that the Diplomatic Note does not require 21 construction personnel to formally register with the State 22 Department for two reasons: (1) the Note does not explicitly require 23 any foreign personnel to register before they are entitled to 18 13 16 266 cv 1 immunity and (2) construction personnel do not fall within the 2 scope of the Note. Neither argument has merit. 3 First, Appellants correctly assert that the Diplomatic Note 4 does not explicitly make immunity conditional upon registration. A 5 reasonable reading of the Note, however, leads us to conclude that 6 registration is required for foreign personnel to possess diplomatic 7 immunity. The Note specifies, for instance, that “notif[ication]” of 8 the State Department is a “requirement[] under Article 10 of the 9 [VCDR].” Appellee’s App. 9 (reminding all Chiefs of Mission “of 10 the requirement, under Article 10 of the [VCDR] to notify the 11 Department promptly of the arrival or appointment . . . of all 12 members of the missions.” (emphasis added)). The Note further 13 elaborates that these reporting requirements are “essential to 14 continued enjoyment by members of the missions . . . of the rights, 15 privileges and immunities to which they may be entitled.” Id. at 10 16 (emphasis added). These provisions strongly suggest that foreign 17 personnel receive immunity only after they have been officially 18 attached to a mission and the receiving state has been duly 19 informed. 20 The Note is wholly consistent with both the text and purpose 21 of the VCDR. Article 10 of the VCDR explicitly requires notification 22 of the receiving state upon the attachment of diplomatic personnel: 23 “[t]he Ministry for Foreign Affairs of the receiving State, or such 14 16 266 cv 1 other ministry as may be agreed, shall be notified of . . . the 2 appointment of members of the mission.” VCDR, art. 10(1)(a) 3 (emphasis added). The VCDR’s preamble sheds additional light on 4 the reason for this notification requirement: “the purpose of 5 [diplomatic] privileges and immunities is . . . to ensure the efficient 6 performance of the functions of diplomatic missions.” Id., preamble. 7 If the receiving state were unaware of which personnel are entitled 8 to immunity, and a determination could be made only after a 9 lengthy judicial inquiry, the efficient performance of a diplomatic 10 mission’s functions would be frustrated. 11 Second, the Appellants argue that, even if the Diplomatic 12 Note requires registration as a condition for receiving immunity, the 13 Diplomatic Note does not apply to construction personnel. This 14 argument, however, is contrary to the express language of the 15 relevant documents. The VCDR and the Note both specify that the 16 registration requirement applies to members of a country’s mission, 17 id., art. 1(c), 10(1)(a); Appellee’s App. 5 6, and the VCDR further 18 defines these members as including “administrative and technical 19 staff,” VCDR, art. 1(c). The Bilateral Agreement explicitly mandates 20 that construction personnel are attached to the “diplomatic mission 21 as administrative and technical staff.” Appellants’ App. 49. The 22 construction personnel described in the Bilateral Agreement plainly 23 fall within the scope of the VCDR and the Diplomatic Note. Indeed, 15 16 266 cv 1 the very purpose of the Bilateral Agreement is to provide 2 construction personnel the same privileges and rights as those 3 afforded to all other mission personnel “in accordance” with the 4 VCDR. Id. at 44. Carried to its logical end, Appellants’ argument 5 would seem to require us to hold that construction personnel are 6 entitled to greater rights and privileges than other mission personnel, 7 i.e., diplomatic immunity without satisfying the registration 8 requirement. 9 10 B. The Bilateral Agreement Diplomatic Note incorporates the 11 Appellants next contend that the Diplomatic Note should not 12 have any bearing on our interpretation of the Bilateral Agreement 13 because, if it did, it would “implicitly” or unilaterally modify the 14 Agreement contrary to the Agreement’s own terms. The Bilateral 15 Agreement, however, incorporates “relevant diplomatic notes” that 16 regard matters “not addressed” in the Bilateral Agreement. 17 Appellants’ App. 55. Such notes, therefore, do not modify the 18 agreement; they are part of it. The Diplomatic Note falls within this 19 category: the parties do not dispute that (1) registration is not 20 addressed in the Bilateral Agreement; and (2) the subject of the 21 Diplomatic Note—a reminder of the registration requirement under 22 the VCDR—is relevant to the Bilateral Agreement, which references 23 the rights afforded to construction personnel under the VCDR. 16 16 266 cv 1 Appellants contend, however, that the Diplomatic Note is a 2 unilateral attempt to amend the Bilateral Agreement and that 3 Section 16.2 of the Bilateral Agreement permits amendments only 4 upon mutual agreement. Section 16.2 does require that certain 5 amendments be made pursuant to mutual agreement: “If any issue 6 is not addressed in [the Bilateral Agreement], the Parties shall refer 7 to their past agreements and relevant diplomatic notes for 8 resolution. Any issue not addressed in these documents shall be 9 addressed through mutual consultation between the Parties.” Id. 10 As we have noted, however, Section 16.2 makes clear that the 11 Diplomatic Note does not alter the Bilateral Agreement; it is part of 12 it. Mutual consultation is required only if there are no relevant 13 diplomatic notes to be incorporated. That is not the case here. 14 Although Section 16.2 provides otherwise, Appellants also 15 suggest that a unilateral diplomatic note cannot bear upon the 16 requirements of a mutual agreement because it is unilateral. 17 Appellants are incorrect, see, e.g., United States v. Kostadinov, 734 F.2d 18 905, 912 13 (2d Cir. 1984) (acknowledging the validity of unilateral 19 diplomatic notes sent to Chiefs of Mission specifying that “all 20 mission personnel entitled to diplomatic privileges and immunities 21 [pursuant to the VCDR] . . . must reside in the Washington area”), 22 particularly where, as here, the mutual agreement explicitly 17 16 266 cv 1 provides for the incorporation of documents that may be issued 2 unilaterally. 3 IV. 4 5 The employees’ visa applications did not satisfy the registration requirement Appellants further argue that, even if registration were a pre 6 condition for immunity, this condition was satisfied when the 7 employees submitted their A 2 and G 2 visa applications. We 8 disagree. 9 A 2 and G 2 visas are issued to foreign personnel or their 10 immediate family members who intend to engage solely in official 11 activities for the foreign government while in the United States, see 12 22 C.F.R. §§ 41.12, 41.22(a), or to enter or transit the United States in 13 pursuance of official duties related to a qualifying international 14 organization, see id. §§ 41.12, 41.24(b)(1). The State Department has 15 specified, however, that such visas are “issued to a broad range of 16 persons,” including those who “enjoy no privileges and immunities 17 in the United States.” Appellants’ App. 88. Because these visas can 18 be issued to individuals who are not entitled to diplomatic 19 immunity, they do not necessarily fulfill the purpose that underlies 20 registration—to inform the State Department as to the identities of 21 foreign personnel who should be entitled to diplomatic immunity in 22 the United States. 23 Indeed, in the instant case, the State Department certified that 24 the employees were not formally registered with the State 18 16 266 cv 1 Department, even though they had applied for and received these 2 visas. Such a certification is generally conclusive where, as here, the 3 State Department’s interpretation of when diplomatic immunity 4 applies under the relevant agreements is reasonable. See In re Baiz, 5 135 U.S. 403, 421 (1890) (“[T]he certificate of the secretary of state . . . 6 is the best evidence to prove the diplomatic character of a person.”); 7 United States v. Al Hamdi, 356 F.3d 564, 573 (4th Cir. 2004) (“[W]e 8 hold that the State Department s certification, which is based upon a 9 reasonable interpretation of the Vienna Convention, is conclusive 10 evidence as to the diplomatic status of an individual.” (citing United 11 States v. Kostadinov, 734 F.2d 905 (2d Cir. 1984))); Abdulaziz v. 12 Metropolitan Dade Cnty., 741 F.2d 1328, 1331 (11th Cir. 13 1984) (“[C]ourts have generally accepted as conclusive the views of 14 the State Department as to the fact of diplomatic status.” (citing 15 Carrera v. Carrera, 174 F.2d 496, 497 (D.C. Cir. 1949))). 16 Before the district court, the State Department certified that 17 “[p]ersons enjoying immunity [under the Bilateral Agreement] 18 would be reflected in the records of the Office of Foreign Missions, 19 United States Department of State.” Appellee’s App. 13. The State 20 Department further certified that the construction personnel at issue 21 in this case either “[were] never registered with the U.S. Department 22 of State,” or their registration was terminated prior to the issuance of 23 the grand jury subpoenas. Id. at 13 15. We accept the State 19 16 266 cv 1 Department’s certification that the Appellants did not satisfy the 2 registration requirement, notwithstanding their visa applications. 3 This affords appropriate deference to the Executive Branch in the 4 realm of foreign relations, particularly where, as here, the Executive 5 Branch’s interpretation of the relevant agreements is reasonable, 6 consistent with the apparent purposes underlying the agreements, 7 and essential to the State Department’s ability to perform its duties. 8 CONCLUSION 9 In sum, because we conclude that the Executive Branch 10 reasonably interpreted the relevant agreements as requiring 11 construction personnel to register with the State Department before 12 receiving immunity and because that condition was not satisfied 13 here, the Appellants are not entitled to diplomatic immunity. We 14 therefore AFFIRM the district court’s order denying the Appellants’ 15 motion to quash their subpoenas.