Whether a foreign state-owned bank can be criminally prosecuted in U.S. courts despite claims of sovereign immunity under international and common law

No question identified. : 2 instrumentality in a domestic court. The U.S. G overnme nt concedes that foreign sovereigns are entitled to absolute criminal immunity, yet argues that this absolute immunity does not extend to sovereign instrumentalities acting under sovereign direction. Id. at 53a. This Court granted Halkbank’s first certio rari petition in 2022 and thereafter remanded the matter to the Second Circuit to reconsider Halkbank’s argument that it is immune from prose-cution at common law. O n remand, the Second Circuit held again that it was bound to defer conclusively to the U.S. Government’s charging decision and to deny absolute immunity. This case raises profound questions regarding U.S. and international immunity law as well as the constitutional separation of powers. 2. Halkbank is a Turkish state bank created by the Turki sh legislature and under complete government control. Halkbank C.A. Br. 6 ; Türkiye C.A. Br. 1214. It has no branches or employees in the United States. Türkiye C.A. Br. 21. Halkbank serves numerous government functions in Türkiye , including managing government development and social welfare programs, providing natural disaster relief, and collecting taxes. Halkbank C.A. Br. 5 -7; Türkiye C.A. Br. 7 -14. The Republic of Türkiye considers Halkbank “an arm of” and “an integral part o f the Republic of Türkiye.” Türkiye C.A. Br. 8, 16. “Türkiye created the [b] ank to function as an extension of itself.” Id. at 16. A grand jury returned a six -count indictment in October 2019 charging Halkbank with (1) conspir acy to defraud the United States; (2) conspir acy to violate the International Emergency Economic Powers Act; (3) bank fraud; (4) conspiracy to commit bank fraud; (5) money laundering; and (6) conspiracy to commit money laundering. App., infra , 34a. Halkbank pleaded not guilty to all counts in March 2020. C.A. App. 9. 3. On August 10, 2020, Halkbank moved to dismiss the indictment on several grounds, including that Halkbank is immune from criminal prosecution on the ground of foreign sovereign immunity. App., infra , 34a ; C.A. Ap p. 13. The district court denied Halkbank’s motion on October 1, 2020. App., infra , 34a-35a. 3 Halkbank appealed the district court’s order insofar as the court had denied Halkbank’s motion to dismiss on sovereign immunity grounds. App., infra , 35a. On October 22, 2021, the court of appeals affirmed. Id. It first held that Halkbank was not immune from prosecution under the Foreign Sovereign Immunities Act (FSIA). Id. It next held that Halkbank was not entitled to immunity under the common law , reasoning that “at common law, sovereign immunity determinations were the prerogative of the Executive Branch,” and thus were binding on the courts , id. at 35a-36a, even though there was no precedent at common law for courts to defer to a decision of the E xecutive to prosecute a foreign sovereign , see In re Investigation of World Arrangements , 13 F.R.D. 280, 291 (D.D.C. 1952); see also Berizzi Bros. Co. v. The Pesaro , 271 U.S. 562, 574 (1926) . On May 13, 2022, Halkbank filed its first petition for a writ of certiorari with this Court, which was granted on October 3, 2022. On April 19, 2023, this Court vacated and remanded in relevant part . App., infra , 4a. It held that the FSIA is a purely civil statute, but concluded the Second Circuit “did not fully consider the various arguments regarding common -law immunity that the parties press[ed] in [the Supreme] Court.” Id. at 18a. It remanded the matter back to the Second Circuit to reconsider the parties’ common -law arguments. Id. 4. On remand , Halkbank and the government submitted briefs to the Second Circuit and that court heard argument. On October 22, 2024, the Second Circuit affirmed on the same grounds as before . The court again concluded , based on what it described as “binding” Second Circuit precedent, App., infra , 43a n.5, that it must defer to the Executive’s decision to indict, id. at 44a-53a, and tha