Appeal from an order dismissing an indictment by the United States District Court for the Southern District of New York, Vincent L. Broderick, Judge, on the ground that the defendant is immune from criminal prosecution by virtue of diplomatic immunity. Order reversed and the indictment reinstated.
Timbers and Pratt, Circuit Judges, and Metzner, District Judge.*fn*
The United States appeals from an order of the United States District Court for the Southern District of New York, Vincent L. Broderick, Judge, dismissing an espionage indictment against the appellee on the ground that the defendant is fully immune from the criminal jurisdiction of the United States by virtue of diplomatic immunity. Vienna Convention on Diplomatic Relations, 23 U.S.T. 3227, T.I.A.S. No. 7502, 500 U.N.T.S. 95, and 22 U.S.C. § 254d (1982) (Convention). For the reasons stated below, we reverse.
I. The facts leading to this appeal
Appellee, Penyu Baychev Kostadinov, is an employee of the Bulgarian Ministry of Foreign Trade, and serves as an assistant commercial counselor in that country's New York trade office. With the permission of the United States, the Bulgarian Legation (later Embassy) in Washington opened the New York office in 1963 for the purpose of promoting trade between the two countries. Bulgaria designated a commercial counselor to head up this office, and he was specifically granted diplomatic immunity by the United States Government. This government recognizes the premises housing the New York office as part of the premises of the Bulgarian Embassy in Washington.
The record reflects that on September 23, 1983, Kostadinov met with another individual in a restaurant in Manhattan. There he purchased from that individual a secret document entitled "Report on Inspection of Nevada Operations Office," which concerned various security procedures for American nuclear weapons. At that meeting Kostadinov paid the individual $300, arranged to meet the person again to make further payment, and gave the person a list of thirty additional classified documents which Kostadinov wanted to acquire. Unbeknown to Kostadinov, the individual had been providing information to the Federal Bureau of Investigation, whose agents recorded the meeting on audio and videotape. FBI agents arrested Kostadinov as he left the meeting. He subsequently was indicted on one count of attempted espionage, 18 U.S.C. § 794(a) (1982), and one count of conspiracy to commit espionage, 18 U.S.C. § 794(c) (1982).
Kostadinov moved before Judge Broderick to dismiss the indictment, claiming that he had diplomatic immunity from criminal prosecution under the provisions of the Convention. Judge Broderick granted Kostadinov's motion, finding that since the New York trade office at which Kostadinov worked was a part of the Bulgarian Embassy, the title "assistant commercial counselor" makes him a member of the staff of the "embassy"*fn1 as defined by the Convention, entitling him to immunity.*fn2
II. The Vienna Convention
A. Provisions and history
The sole issue on this appeal is whether, under the provisions of the Convention, approved by the Senate in 1965 and ultimately ratified by this country in 1972, as well as 22 U.S.C. § 254d, Kostadinov was a member of the Bulgarian mission immune from criminal prosecution in this country. It appears that prior to the Convention there would be no question as to the power of the United States to deny diplomatic immunity to Kostadinov. Section 254d provides that an indictment against an individual protected by the Convention shall be dismissed.
Under the Convention, diplomatic privileges and immunities are determined with reference to a country's "mission" abroad, but nowhere does the Convention expressly define the term "mission." Article 1 does define the "members of the mission" as "the head of the mission and the members of the staff of the mission," which includes "the diplomatic staff . . . the administrative and technical staff and . . . the service staff of the mission . . . ." The "administrative and technical staff," in turn, is defined as "the members of the staff of the mission employed in the administrative and technical service of the mission . . . ." It is to this group that Kostadinov claims to belong, and indeed, Article 3 lists one of the functions of a diplomatic mission as "developing" the "economic" relations between the sending and receiving states.*fn3
Article 7 provides, in pertinent part, that subject to Articles 9 and 11, "the sending State may freely appoint the members of the staff of the mission." Article 9 states that:
"1. The receiving State may at any time and without having to explain its decision, notify the sending State that the head of the mission or any member of the diplomatic staff of the mission is persona non grata or that any other member of the staff of the mission is not acceptable. In any such case, the sending State shall, as appropriate, either recall the person concerned or terminate his functions with the mission. A person may be declared non grata or not acceptable before arriving in the territory of the receiving State.
2. If the sending State refuses or fails within a reasonable period to carry out its obligations under paragraph 1 of this Article, the receiving State may refuse to recognize the person concerned as a member of the mission."
Article 11 provides that:
"1. In the absence of the specific agreement as to the size of the mission, the receiving State may require that the size of a mission be kept within limits considered by it to be reasonable and normal, having regard to circumstances and conditions in ...