Argued April 1, 2015.
Appeal from and Petition for Writ of Mandamus to the United States District Court for the Western District of Wisconsin. No. 13-cr-84-bbc -- Barbara B. Crabb, Judge.
For United States of America, Plaintiff - Appellee (14-3013): Brian Levine, Attorney, Department of Justice, Criminal Division, Special Investigation, Washington, DC; Timothy M. O'Shea, Attorney, Office of The United States Attorney, Madison, WI.
For Sinovel Wind Group Co., Ltd, doing business as: Sinovel Wind Group (USA), Co., Ltd., Defendant - Appellant (14-3013): John P. Elwood, Attorney, Jeremy C. Marwell, Attorney, Vinson & Elkins, Washington, DC; Michael J. Fitzgerald, Attorney, Fitzgerald Law Firm, S.C., Milwaukee, WI; Matthew J. Jacobs, Attorney, Vinson & Elkins Llp, Vinson & Elkins Llp.
For Sinovel Wind Group Co., Ltd, doing business as: Sinovel Wind Group (USA), Co., Ltd., Petitioner (14-3105): John P. Elwood, Attorney, Jeremy C. Marwell, Attorney, Vinson & Elkins, Washington, DC.
For United States of America, Party-in-Interest (14-3105): Brian Levine, Attorney, Department of Justice, Criminal Division, Special Investigation, Washington, DC; Timothy M. O'Shea, Attorney, Office of The United States Attorney, Madison, WI.
Before WOOD, Chief Judge, FLAUM, Circuit Judge, and KENNELLY, District Judge.[*]
Wood, Chief Judge.
In June 2013, the United States delivered a criminal summons to the office of Sinovel Wind Group (USA) Company in Texas. It did so in order to serve process on Sinovel Wind Group Company, a Chinese corporation and the owner of 100% of the shares of Sinovel Wind Group (USA). (To avoid confusion, we refer to the subsidiary Sinovel USA and the parent as Sinovel.) The summons revealed that Sinovel had been indicted in the Western District of Wisconsin for crimes including criminal copyright infringement and trade secret theft. Sinovel contested jurisdiction and moved to quash service of the summons. Concluding that Sinovel USA was the alter ego of Sinovel and that service on Sinovel USA was proper, the district court denied Sinovel's motion. Sinovel appealed (No. 14-3013), and shortly thereafter filed a petition for a writ of mandamus in this court (No. 14-3105), asking us to direct the district court to vacate its order refusing to quash service of process. We conclude that we have no jurisdiction to hear Sinovel's appeal. We also conclude that this case does not meet the high standards for issuance of a writ of mandamus. Sinovel will be free to raise all relevant arguments on appeal from final judgment, should it be convicted and wish to pursue the matter.
A grand jury in the Western District of Wisconsin indicted Sinovel and three individuals in June 2013 on charges of conspiracy to commit trade secret theft, wire fraud, trade secret theft, and criminal copyright infringement. See 18 U.S.C. § § 371, 1343, 1832(a)(2), 2319; 17 U.S.C. § 506(a)(1)(A). The charges arose from Sinovel's alleged scheme to steal (among other things) computer source code from a company called AMSC, formerly known as American Superconductor; the pilfered code was allegedly going to be used to assist in operating Sinovel's wind turbines. FBI reports indicate that the government served a summons on Sinovel USA's registered agent in Dover, Delaware, in June 2013; it also mailed a summons to Sinovel USA's office in Houston via FedEx and served Sinovel USA's registered agent in Austin. (Sinovel USA was incorporated in Delaware and registered to transact business in Texas.)
In August 2013, Sinovel specially appeared in the district court to file a motion pursuant to Federal Rule of Criminal Procedure 12 to quash service of the summonses, complaint, and indictment. The record indicates that the individual defendants do not reside in the United States and are not expected to appear; they have not been served and ...