Halkbank v. United States

Whether U.S. district courts may exercise subject matter jurisdiction over criminal prosecutions against foreign sovereigns and their instrumentalities under 18 U.S.C. § 3231 and in light of the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1330, 1441(d), 1602-1611.

Petitioner was indicted for conspiracy to evade U.S. economic sanctions under 18 U.S.C. § 3231. Petitioner moved to dismiss the indictment, arguing they were immune from criminal prosecution under the Foreign Sovereign Immunities Act (FSIA) of 1976, 28 U.S.C. §§1330, 1602 et seq. The U.S. Court of Appeals for the Second Circuit affirmed the district court’s denial of the motion, reasoning that the district court had subject matter jurisdiction under § 3231 and that Petitioner’s conduct fell within the commercial activities exception to the FSIA. Petitioner argued that the district court lacked subject matter jurisdiction because the statute did not include foreign states and their instrumentalities. The Court was unpersuaded by this given the textual scope of § 3231 which operates “without regard to the identity or status of the defendant.” C. Keitner, Prosecuting Foreign States, 61 Va. J. Int’l L. 221, 242 (2021). Petitioner reasserted their argument that under the FSIA, they are immune from criminal prosecution. Since the FSIA’s enactment, the Court has repeatedly stated that the statute applies in “civil” actions. Cassier v. Thyssen-Bornemisza Collection Foundation, 596 U.S. –––, ––– (2022); Republic of Argentina v. NML Capital, Ltd., 573 U.S. 134, 141 (2014). Although the Court had not expressly held that FSIA covered only civil matters, it had never applied immunity in a criminal case. Because the statute exclusively addressed civil suits and set forth a scheme that related only to civil cases, the Court held that FSIA does not grant immunity in a criminal case. Affirmed in part, vacated in part, and remanded in part.