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SUPREME COURT OF THE UNITED STATES
TURKIYE HALK BANKASI A. S., aka HALKBANK,
on writ of certiorari to the united states
court of appeals for the second circuit
[April 19, 2023]
Justice Kavanaugh delivered the opinion of the
The United States indicted Halkbank, a bank
owned by the Republic of Turkey, for conspiring to evade U. S.
economic sanctions against Iran. The United States brought the
prosecution in the U. S. District Court for the Southern
District of New York. Halkbank contends that the indictment should
be dismissed because the general federal criminal jurisdiction
statute, 18 U. S. C. §3231, does not extend to
prosecutions of instrumentalities of foreign states such as
Halkbank. Halkbank alternatively argues that the Foreign Sovereign
Immunities Act of 1976 provides instrumentalities of foreign states
with absolute immunity from criminal prosecution in U. S.
We disagree with Halkbank on both points. We
hold that the District Court has jurisdiction under 18
U. S. C. §3231 over the prosecution of Halkbank. We
further hold that the Foreign Sovereign Immunities Act does not
provide immunity from criminal prosecution. With respect to an
additional common-law immunity argument raised by Halkbank, we
vacate the judgment of the Court of Appeals and remand.
Halkbank is a bank whose shares are
majority-owned by the Turkish Wealth Fund, which in turn is part of
and owned by the Republic of Turkey. In 2019, the United States
indicted Halkbank for a multi-year conspiracy to evade economic
sanctions imposed by the United States on Iran. The indictment
alleged that Halkbank, with the assistance of high-ranking Turkish
government officials, laundered billions of dollars of Iranian oil
and gas proceeds through the global financial system, including the
U. S. financial system, in violation of U. S. sanctions
and numerous federal statutes. The indictment further claimed that
Halkbank made false statements to the U. S. Treasury
Department in an effort to conceal the scheme. Two individual
defendants, including a former Halkbank executive, have already
been convicted in federal court for their roles in the alleged
conspiracy. According to the U. S. Government, several other
indicted defendants, including Halkbank’s former general
manager and its former head of foreign operations, remain at
Halkbank moved to dismiss the indictment on the
ground that an instrumentality of a foreign state such as Halkbank
is immune from criminal prosecution under the Foreign Sovereign
Immunities Act of 1976, 28 U. S. C. §§1330,
1602 et seq.
The U. S. District Court for the
Southern District of New York denied the motion, reasoning in
relevant part that the FSIA “does not appear to grant
immunity in criminal proceedings.” App. to Pet. for Cert.
Halkbank filed an interlocutory appeal, and the
U. S. Court of Appeals for the Second Circuit affirmed. 16 F.
4th 336 (2021). The Court of Appeals first determined that the
District Court has subject matter jurisdiction over this criminal
prosecution under 18 U. S. C. §3231. As to the FSIA,
the Court of Appeals assumed without deciding that the FSIA confers
immunity in criminal proceedings to foreign states and their
instrumentalities, but held that in any event Halkbank’s
charged conduct fell within the FSIA’s exception for
We granted certiorari. 598 U. S. ___
Halkbank first contends that the District
Court lacks jurisdiction over this criminal prosecution.
Section 3231 of Title 18 provides: “The
district courts of the United States shall have original
jurisdiction, exclusive of the courts of the States, of all
offenses against the laws of the United States.” Via its
sweeping language, §3231 opens federal district courts to the
full range of federal prosecutions for violations of federal
criminal law. By its terms, §3231 plainly encompasses
Halkbank’s alleged criminal offenses, which were
“against the laws of the United States.”
Halkbank cannot and does not dispute that
§3231’s text as written encompasses the offenses charged
in the indictment. Halkbank nonetheless argues that the statute
implicitly excludes foreign states and their instrumentalities. In
support of that argument, Halkbank identifies certain civil and
bankruptcy statutes that expressly refer to actions against foreign
states and their instrumentalities. See 28 U. S. C.
§§1330(a), 1603(a)–(b); 11 U. S. C.
§§101(27), 106(a); Act of Mar. 3, 1875, ch. 137, §1,
18Stat. 470, as amended, §3, 90Stat. 2891. Because §3231
refers generically to “all” federal criminal offenses
without specifically mentioning foreign states or their
instrumentalities, Halkbank reasons that foreign states and their
instrumentalities do not fall within §3231’s scope.
We decline to graft an atextual limitation onto
§3231’s broad jurisdictional grant over “all
offenses” simply because several unrelated provisions in the
U. S. Code happen to expressly reference foreign states and
instrumentalities. Those scattered references in distinct contexts
do not shrink 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). Nor will we create a new
clear-statement rule requiring Congress to “clearly
indicat[e] its intent” to include foreign states and their
instrumentalities within §3231’s jurisdictional grant.
Brief for Petitioner 11.
Halkbank also points to §3231’s
predecessor: a provision of the Judiciary Act of 1789 granting
district courts “cognizance of all crimes and offences that
shall be cognizable under the authority of the United
States.” §9, 1Stat. 76. In Halkbank’s view, other
statutory provisions from that same era—including several
that referred to suits against foreign actors—suggest that
Congress would have expressly referenced foreign states and their
instrumentalities if Congress had intended the 1789 provision to
reach those entities. And Halkbank says that we should read
§3231 like its predecessor provision. The premise is
unsupported. The 1789 provision, like §3231 itself, contains
no exception for prosecutions of foreign states or their
instrumentalities. And this Court has never suggested that the 1789
provision contains an implicit exception. So the 1789 provision
does not help Halkbank’s argument that we should find an
implicit exception in §3231.
Finally, Halkbank invokes a separate provision
of the 1789 Judiciary Act granting district courts jurisdiction
over “all civil causes of admiralty and maritime
jurisdiction.” §9, id.
, at 77. Halkbank asserts
that this Court has construed that provision not to confer
jurisdiction over foreign state entities. Brief for Petitioner 22,
25 (citing Schooner Exchange
116 (1812)). It follows, Halkbank says, that the 1789 Act’s
similar general reference to “all crimes and offences”
and its successor §3231’s reference to “all
offenses” likewise must be interpreted not to reach foreign
states and their instrumentalities.
We disagree with Halkbank’s reading of our
precedents. The case on which Halkbank primarily relies,
, indeed held that a district court lacked
“jurisdiction” over a suit claiming ownership of a
French warship docked in a Philadelphia port. 7 Cranch, at
146–147. But Schooner Exchange
did not address
statutory subject matter jurisdiction. Instead, as this Court has
since explained, Schooner Exchange
concerned principles of
foreign sovereign immunity that “developed as a matter of
common law.” Samantar
, 560 U.S.
, 311 (2010). Contrary to Halkbank’s contention, the
common-law sovereign immunity recognized in Schooner
is a “rule of substantive law governing the
exercise of the jurisdiction of the courts,” not an exception
to a general statutory grant of subject matter jurisdiction.
Republic of Mexico
, 324 U.S.
, 36 (1945); see also Ex parte Peru
, 318 U.S.
, 587–588 (1943).
In sum, the District Court has jurisdiction
under 18 U. S. C. §3231 over this criminal
Relying on the Foreign Sovereign Immunities
Act, Halkbank contends that it enjoys immunity from criminal
prosecution. We disagree because the Act does not provide foreign
states and their instrumentalities with immunity from
The doctrine of foreign sovereign immunity
originally developed in U. S. courts “as a matter of
common law” rather than by statute. Samantar
, 560 U.S.
, 311 (2010). In determining whether to allow suits against
foreign sovereigns, however, courts traditionally “deferred
to the decisions of the political branches—in particular,
those of the Executive Branch.” Verlinden B. V.
Central Bank of Nigeria
, 461 U.S.
, 486 (1983); see also Rubin
v. Islamic Republic
, 583 U. S. ___, ___ (2018) (slip op., at 4);
Republic of Austria
, 541 U.S.
, 689 (2004).
In 1952, the State Department announced the
“restrictive” theory of foreign sovereign immunity,
under which immunity was typically afforded in cases involving a
foreign state’s public acts, but not its strictly commercial
, 583 U. S., at ___–___ (slip op., at
4–5). In the ensuing years, the process by which the
Executive Branch submitted statements regarding a foreign
state’s immunity sometimes led to inconsistency, particularly
in light of the case-by-case diplomatic pressure that the Executive
Branch received from foreign nations. Verlinden
U. S., at 487. And when foreign states did not ask the State
Department to weigh in, courts were left to render immunity rulings
on their own, generally by reference to prior State Department
v. Republic of Sudan
, 590 U. S.
___, ___ (2020) (slip op., at 2); Verlinden
, 461 U. S.,
In 1976, Congress entered the fray and sought
to standardize the judicial process with respect to immunity for
foreign sovereign entities in civil cases. Congress passed and
President Ford signed the Foreign Sovereign Immunities Act. The
FSIA prescribed a “comprehensive set of legal standards
governing claims of immunity in every civil action against a
foreign state.” Id.
, at 488.
To that end, the FSIA codifies a baseline
principle of immunity for foreign states and their
instrumentalities. 28 U. S. C. §1604. The FSIA then
sets out exceptions to that principle—including, for example,
the exception for commercial activities.
The FSIA defines a “foreign state”
to encompass instrumentalities of a foreign state—including
entities that are directly and majority-owned by a foreign state.
§§1603(a)–(b); Dole Food Co.
, 538 U.S.
, 473–474 (2003). (In this case, the United States
does not contest Halkbank’s status as an instrumentality of a
foreign state for purposes of the FSIA. Brief for United States 28;
see also 16 F. 4th, at 342, n. 8.)
Since the FSIA’s enactment, this Court has
repeatedly stated that the statute applies in “civil”
actions. See, e.g.
, 596 U. S. ___, ___ (2022) (slip
op., at 5); Republic of Argentina
v. NML Capital,
, 573 U.S.
, 141 (2014); Altmann
, 541 U. S., at 691;
, 461 U. S., at 488. Although the Court has
not expressly held that the FSIA covers only
the Court has never applied the Act’s immunity provisions in
a criminal case.
We now hold that the FSIA does not grant
immunity to foreign states or their instrumentalities in criminal
proceedings. Through the FSIA, Congress enacted a comprehensive
scheme governing claims of immunity in civil actions against
foreign states and their instrumentalities. That scheme does not
cover criminal cases.
To begin with, the text of the FSIA indicates
that the statute exclusively addresses civil suits against foreign
states and their instrumentalities. The first provision of the FSIA
grants district courts original jurisdiction over “any
action against a foreign state” as to
“any claim for relief in personam with respect to which the
foreign state is not entitled to immunity.” 28
U. S. C. §1330(a) (emphasis added); 90Stat.
The FSIA then sets forth a carefully calibrated
scheme that relates only to civil cases. For instance, the sole
FSIA venue provision exclusively addresses venue in a “civil
action” against a foreign state. §1391(f ). The Act
similarly provides for removal to federal court of a “civil
action” brought in state court. §1441(d). The Act
prescribes detailed rules—including those governing service
of “the summons and complaint,” §1608(a)(1), along
with “an answer or other responsive pleading to the
complaint,” §1608(d), as well as for any judgment of
default, §1608(e)—that relate to civil cases alone. So,
too, the Act’s provision regarding counterclaims concerns
only civil proceedings. §1607. Finally, the Act renders a
non-immune foreign state “liable in the same manner and to
the same extent as a private individual,” except that a
foreign state (but not an agency or instrumentality thereof)
“shall not be liable for punitive damages.” §1606.
Each of those terms characterizes civil, not criminal,
Other parts of the statute underscore the
FSIA’s exclusively civil focus. Congress codified its finding
that authorizing federal courts to determine claims of foreign
sovereign immunity “would protect the rights of both foreign
states and litigants
in United States courts.”
§1602 (emphasis added). The statutory term
“litigants” does not ordinarily sweep in governments
acting in a prosecutorial capacity. See Black’s Law
Dictionary 1119 (11th ed. 2019) (defining “litigant” as
“A party to a lawsuit; the plaintiff or defendant in a court
action”). What is more, Congress described the FSIA as
defining “the circumstances in which foreign states are
immune from suit
,” not from criminal investigation or
prosecution. 90Stat. 2891 (emphasis added).
In stark contrast to those many provisions
concerning civil actions, the FSIA is silent as to criminal
matters. The Act says not a word about criminal proceedings against
foreign states or their instrumentalities. If Halkbank were correct
that the FSIA immunizes foreign states and their instrumentalities
from criminal prosecution, the subject undoubtedly would have
surfaced somewhere in the Act’s text. Congress typically does
not “hide elephants in mouseholes.” Whitman
American Trucking Assns., Inc.
, 468 (2001).
Context reinforces text. Although the vast
majority of litigation involving foreign states and their
instrumentalities at the time of the FSIA’s enactment in 1976
was civil, the Executive Branch occasionally attempted to subject
foreign-government-owned entities to federal criminal
investigation. See In re Grand Jury Investigation of
186 F. Supp. 298
, 318–320 (DC 1960); In re
Investigation of World Arrangements
, 13 F.R.D. 280,
288–291 (DC 1952). Given that history, it becomes even more
unlikely that Congress sought to codify foreign sovereign immunity
from criminal proceedings without saying a word about such
Congress’s determination about the
FSIA’s precise location within the U. S. Code bolsters
that inference. Congress expressly decided to house each provision
of the FSIA within Title 28, which mostly concerns civil procedure.
See 90Stat. 2891. But the FSIA did not alter Title 18, which
addresses crimes and criminal procedure.
Finally, this Court’s decision in
supports the conclusion that the FSIA does not
apply to criminal proceedings. In Samantar
, we considered
whether the FSIA’s immunity provisions applied to a suit
against an individual foreign official based on actions taken in
his official capacity. 560 U. S., at 308. Analyzing the
Act’s “text, purpose, and history,” the Court
determined that the FSIA’s “comprehensive solution for
suits against states” does not “exten[d] to suits
against individual officials.” Id.
, at 323, 325.
As in Samantar
, we conclude here that the
FSIA’s provisions concerning suits against foreign states and
their instrumentalities do not extend to a discrete
context—in this case, criminal proceedings. The Act’s
“careful calibration” of jurisdiction, procedures, and
remedies for civil litigation confirms that Congress did not
“cover” criminal proceedings. Id.,
at 319. Put
simply, immunity in criminal proceedings “was not the
particular problem to which Congress was responding.”
, at 323.
In response to all of that evidence of the
FSIA’s exclusively civil scope, Halkbank emphasizes a
sentence of the FSIA codified at 28 U. S. C. §1604:
“Subject 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.” Halkbank contends
that §1604 renders it immune not only from civil suits but
also from criminal prosecutions.
In complete isolation, §1604 might be
amenable to that reading. But this Court has a “duty to
construe statutes, not isolated provisions.” Graham County
Soil and Water Conservation Dist.
v. United States ex rel.
, 559 U.S.
, 290 (2010) (internal quotation marks omitted). And the
Court must read the words Congress enacted “in their context
and with a view to their place in the overall statutory
v. Michigan Dept. of Treasury
, 809 (1989). When we consider §1604 alongside its
neighboring FSIA provisions, it becomes overwhelmingly evident that
§1604 does not grant immunity to foreign states and their
instrumentalities in criminal matters.
Section 1330(a) is the place to start. This
Court has explained that “Sections 1604 and 1330(a) work in
tandem.” Argentine Republic
v. Amerada Hess
, 488 U.S.
, 434 (1989). Indeed, the public law containing the FSIA
begins with §1330 and then later follows with §1604. See
90Stat. 2891–2892. Recall that §1330(a) confers
district-court jurisdiction over “any nonjury civil action
against a foreign state” as to “any claim for relief in
personam with respect to which the foreign state is not entitled to
immunity.” Section 1604 then confers immunity on foreign
states unless an enumerated statutory exception applies. See
Reading the two provisions together (as we must)
and sequentially (per Congress’s design), the natural
inference is that §1604 operates exclusively in civil cases.
Section 1330(a) spells out a universe of civil (and only civil)
cases against foreign states over which district courts have
jurisdiction, and §1604 then clarifies how principles of
immunity operate within that limited civil universe.
We thus decline to read §1604’s grant
of immunity to apply in criminal proceedings—a category of
cases beyond the civil actions contemplated in §1330(a), the
jurisdictional grant to which §1604 is substantively and
sequentially linked. Before making that leap, we would expect to
find some express textual indication regarding §1604’s
purportedly broader-than-civil scope. But none exists.
Moreover, Halkbank’s interpretation of
§1604 is difficult to square with its interpretation of
§1605, an FSIA provision delineating exceptions to the
immunity granted in §1604. Halkbank reads §1604 to confer
immunity in both civil and criminal cases. But Halkbank then turns
around and insists that the exceptions to that immunity specified
in §1605—exceptions which, per the statute, apply
“in any case”—attach exclusively in civil
matters. Brief for Petitioner 43.
In other words, Halkbank sees §1330 as
operating only in civil cases, §1604 in both civil and
criminal cases, and §1605 only in civil cases. In
Halkbank’s view, the FSIA’s scope awkwardly flip-flops
from civil to civil-and-criminal back to civil again in sequential
provisions. Congress did not write such a mangled statute. The
better and more natural reading is that §§1330, 1604, and
1605 operate in tandem within a single universe of civil
The FSIA’s remaining provisions described
above—namely, those detailing elaborate procedures and
remedies applicable exclusively in civil cases—strongly
buttress the conclusion that §1604 “lays down a baseline
principle of foreign sovereign immunity from civil
,” and from civil actions alone. Cassirer
596 U. S., at ___ (slip op., at 5) (emphasis added).
Considering the FSIA “as a whole,” there is
“nothing to suggest we should read” §1604 to apply
to criminal proceedings. Samantar
, 560 U. S., at
In sum, Halkbank’s narrow focus on
§1604 misses the forest for the trees (and a single tree at
that). Halkbank’s §1604 argument reduces to the
implausible contention that Congress enacted a statute focused
entirely on civil actions and then in one provision that does not
mention criminal proceedings somehow stripped the Executive Branch
of all power to bring domestic criminal prosecutions against
instrumentalities of foreign states. On Halkbank’s view, a
purely commercial business that is directly and majority-owned by a
foreign state could engage in criminal conduct affecting U. S.
citizens and threatening U. S. national security while facing
no criminal accountability at all in U. S. courts. Nothing in
the FSIA supports that result.
Halkbank advances three additional reasons why
this Court should read the FSIA to immunize foreign states and
their instrumentalities from criminal proceedings. None is
, Halkbank emphasizes this
Court’s statement in a 1989 case that the FSIA is the
“sole basis for obtaining jurisdiction over a foreign state
in federal court.” Amerada Hess
, 488 U. S., at
439. But Amerada Hess
was not a criminal case. Rather, it
was a civil case brought under the Alien Tort Statute and under the
federal courts’ general admiralty and maritime jurisdiction.
at 432 (citing 28 U. S. C. §§1333,
1350). This Court has often admonished that “general language
in judicial opinions” should be read “as referring in
context to circumstances similar to the circumstances then before
the Court and not referring to quite different circumstances that
the Court was not then considering.” Illinois
, 540 U.S.
, 424 (2004). Amerada Hess
made clear that the FSIA
displaces general “grants of subject-matter jurisdiction in
Title 28”—that is, in civil
foreign states. 488 U. S., at 437 (citing 28
U. S. C. §§1331, 1333, 1335, 1337, 1338). The
Court had no occasion to consider the FSIA’s implications for
Title 18’s grant of criminal
“all” federal criminal offenses. 18 U. S. C.
At any rate, Amerada Hess
rationale does not translate to the criminal context. The
Court’s holding as to the nonapplicability of general civil
jurisdictional grants was based on the FSIA’s own civil
jurisdictional grant and the “comprehensiveness” of the
statutory scheme as to civil matters. 488 U. S., at
434–435, and n. 3, 437 (citing 28 U. S. C.
§1330(a)). But the FSIA contains no grant of criminal
jurisdiction and says nothing about criminal matters—a
distinct legal regime housed in an entirely separate title of the
U. S. Code. The FSIA did not implicitly repeal or modify 18
U. S. C. §3231’s core grant of criminal
, Halkbank warns that courts and
the Executive will lack “congressional guidance” as to
procedure in criminal cases if we conclude that the FSIA does not
apply in the criminal context. Brief for Petitioner 37. But that
concern carried no weight in Samantar
, which likewise deemed
the FSIA’s various procedures inapplicable to a specific
category of cases—there, suits against foreign officials. In
any event, the Federal Rules of Criminal Procedure would govern any
federal criminal proceedings. And although Halkbank argues that
Congress would not have been “indifferent” to criminal
jury trials involving instrumentalities of foreign states,
, at 38, juries already resolve similarly sensitive cases
against foreign officials after Samantar
, Halkbank briefly raises a
consequentialist argument. According to Halkbank, if the FSIA does
not apply to criminal proceedings, then state
would also be free to commence criminal proceedings against foreign
states and their instrumentalities. Halkbank argues that those
state prosecutions would raise foreign policy concerns. But we must
interpret the FSIA as written. And the statute simply does not
grant immunity to foreign states and their instrumentalities in
In addition, it is not evident that the premise
of Halkbank’s consequentialist argument is correct. To begin
with, Halkbank offers no history of state prosecutors subjecting
foreign states or their instrumentalities to criminal jurisdiction.
And if such a state prosecution were brought, the United States
could file a suggestion of immunity. A decision by a state court to
deny foreign sovereign immunity might be reviewable by this Court
(a question we do not here address). Moreover, state criminal
proceedings involving foreign states or their instrumentalities
might be preempted under principles of foreign affairs preemption
(another question we do not here address). Cf. American Ins.
, 539 U.S.
(2003). And if those principles do not apply or do not
suffice to protect U. S. national security and foreign policy
interests, Congress and the President may always respond by
enacting additional legislation.
In short, Halkbank’s various FSIA
arguments are infused with the notion that U. S. criminal
proceedings against instrumentalities of foreign states would
negatively affect U. S. national security and foreign policy.
But it is not our role to rewrite the FSIA based on purported
policy concerns that Congress and the President have not seen fit
to recognize. The FSIA does not provide foreign states and their
instrumentalities with immunity from criminal proceedings.
Although the FSIA does not immunize Halkbank
from criminal prosecution, Halkbank advances one other plea for
immunity. In the context of a civil proceeding, this Court has
recognized that a suit not governed by the FSIA “may still be
barred by foreign sovereign immunity under the common law.”
, 560 U.S.
, 324 (2010). Halkbank maintains that principles of
common-law immunity preclude this criminal prosecution even if the
FSIA does not. To that end, Halkbank contends that
common-law-immunity principles operate differently in criminal
cases than in civil cases. See Brief for Petitioner 34–35,
44. And Halkbank argues that the Executive Branch cannot
unilaterally abrogate common-law immunity by initiating
The Government disagrees. Reasoning from
pre-FSIA history and precedent, the Government asserts that the
common law does not provide for foreign sovereign immunity when, as
here, the Executive Branch has commenced a federal criminal
prosecution of a commercial entity like Halkbank. See Brief for
United States 21. In the alternative, the Government contends that
any common-law immunity in criminal cases would not extend to
commercial activities such as those undertaken by Halkbank.
, at 16–21.
The Court of Appeals did not fully consider the
various arguments regarding common-law immunity that the parties
press in this Court. See 16 F. 4th, at 350–351. Nor did the
Court of Appeals address whether and to what extent foreign states
and their instrumentalities are differently situated for purposes
of common-law immunity in the criminal context. We express no view
on those issues and leave them for the Court of Appeals to consider
on remand. Cf. Samantar
, 560 U. S., at
* * *
With respect to the holding of the Court of
Appeals that the District Court has jurisdiction under 18
U. S. C. §3231, we affirm. With respect to the
holding of the Court of Appeals that the FSIA does not provide
immunity to Halkbank, we affirm on different grounds—namely,
that the FSIA does not apply to criminal proceedings. With respect
to common-law immunity, we vacate the judgment of the Court of
Appeals and remand for the Court of Appeals to consider the
parties’ common-law arguments in a manner consistent with
It is so ordered.