An indictment filed in the Southern District of New York charged Halkbank, an entity partially owned by the Republic of Turkey, and several associated individuals with laundering billions of dollars of Iranian oil and gas proceeds into the U.S. economy in violation of U.S. sanctions and federal statutes. The bank filed a motion to dismiss, claiming that the Foreign Sovereigns Immunities Act of 1976, 28 U.S.C. §§ 1330, 1602 et seq., grants it immunity from criminal prosecution.
Both the district court and the Second Circuit disagreed with the bank, who then appealed to the Supreme Court. As a matter of first impression, the Supreme Court held that the FSIA only applies in the civil context. And, given that no other statute grants immunity to foreign sovereigns in the context of criminal prosecutions, the case was remanded to the Second Circuit to consider whether the bank has a valid claim of immunity under common law.
Justices Gorsuch and Alito concurred in the judgment but held that the majority’s holding was broader than necessary and inconsistent with the plain text of the FISA, which says that, “[s]ubject to existing international agreements,” a “foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607 of this chapter.” While none of those sections make any reference to criminal matters, § 1605(a)(2) includes an exception for “commercial activities.” Therefore, the two justices would have held, as the Second Circuit did, that it was not necessary to ask the broader question—whether the FISA applies in the criminal context at all, given that Halkbank’s conduct falls would fall within an exception to any grant of immunity.
Certiorari to the Second Circuit
Opinion by Kavanaugh, joined by Roberts, Thomas, Sotomayor, Kagan, Barrett, and Jackson
Opinion concurring in part and dissenting in part by Gorsuch, joined by Alito
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