Director, Center for Supreme Court AdvocacyNational Association of Attorneys General
This Report summarizes cases granted review on October 3, 2022
Case Granted Review: Turkiye Halk Bankasi A.S. v. United States, 21-1450
Turkiye Halk Bankasi A.S. v. United States, 21-1450. At issue is “[w]hether U.S. district courts may exercise subject-matter jurisdiction over criminal prosecutions against foreign sovereigns and their instrumentalities under 18 U.S.C. §3231”―the general criminal jurisdictional statute―“and in light of the Foreign Sovereign Immunities Act, 28 U.S.C. §§1330, 1441(d), 1602-1611.” Two statutes are central to this case. First is FSIA, which generally grants foreign states—including companies majority owned by foreign states—immunity in U.S. courts. 28 U.S.C. §§1603(a)-(b), 1604. But it excepts cases “in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere.” 28 U.S.C. §1605(a)(2). Second is 18 U.S.C. §3231, which provides that “district courts of the United States shall have original jurisdiction . . . of all offenses against the laws of the United States.”
A grand jury in the Southern District of New York indicted a bank, known as Halkbank, that is majority owned by Turkey. The indictment charged that Halkbank schemed to launder billions of dollars in proceeds from Iranian oil and natural gas in violation of U.S. sanctions. Halkbank moved to dismiss the indictment, arguing it had immunity under FSIA. The district court denied the motion, holding that FSIA applies only in civil cases; and even if it applied in criminal cases, the exception to immunity for commercial activity would apply to Halkbank. The Second Circuit affirmed. 16 F.4th 336. It held first that 18 U.S.C. §3231 gives district courts subject-matter jurisdiction over all federal criminal prosecutions. Next, it held that it did not need to decide if FSIA gives foreign sovereigns immunity in the criminal context because even if it did, FSIA’s commercial-activity exception would apply so Halkbank would not be immune. Therefore, it concluded, the court had jurisdiction over the prosecution.
Petitioner Halkbank argues that—as the Sixth Circuit has held—federal courts lack criminal jurisdiction over foreign sovereigns. It argues “FSIA is the only method of obtaining jurisdiction over foreign sovereigns.” Keller v. Cent. Bank of Nigeria, 277 F.3d 811, 819 (6th Cir. 2002) (citation omitted). Because §1330(a), FSIA’s jurisdictional provision, “refers only to civil, and not criminal, actions,” there “is no criminal jurisdiction” over foreign sovereigns. Moreover, it argues, the general statute giving district courts jurisdiction over “all offenses against the laws of the United States,” 18 U.S.C. §3231, does not suffice to confer jurisdiction here because the Court has held that Congress has to speak clearly to overcome the strong norm against haling foreign sovereigns into court. A general grant of jurisdiction, it argues, is not such a clear statement.