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Chimene Keitner @KeitnerLaw
, 20 tweets, 8 min read Read on Twitter
Seems like a thread on recent US practice w/r/t criminal prosecution of foreign sovereign entities might be of interest. @S_R_Anders @YesMomsCan @jedshug @ZoeTillman @lrozen @nycsouthpaw @kpolantz #Mueller #subpoena 1/19
For non-lawyers: to “quash” a subpoena, the recipient (defendant or witness) must show that compliance would be “unreasonable or oppressive.” A court can hold in contempt a witness “who, without adequate cause, disobeys a subpoena.” 2/19 law.cornell.edu/rules/frcrmp/r…
Yesterday’s panel opinion upholding the subpoena and the contempt order rejected the foreign state-owned company’s arguments that it was 1) immune from US jurisdiction and 2) precluded from complying by foreign law. 3/19 lawfare.s3-us-west-2.amazonaws.com/staging/2018/3…
As noted in a prior thread, if the FSIA applies to criminal proceedings, then satisfying the commercial activity exception to immunity (plus service of process requirements) would give a US federal court personal *and* subject-matter jurisdiction. 4/19
But relying on the FSIA in criminal proceedings has down-sides for DOJ, which is why it’s likely DOJ only made the commercial activity argument as a back-up (“in the alternative”). 5/19
The question of criminal immunity for foreign states has come up most often in the context of civil liability under RICO, which requires the plaintiff to show that the defendant has engaged in a pattern of indictable acts. 6/19 law.com/newyorklawjour…
The 10th Cir found in a 1999 case that the FSIA provides jurisdiction over civil RICO (racketeering) claims. It reasoned that if Congress wants to confer criminal immunity on foreign states, it should “expressly so state.” 7/19 courtlistener.com/opinion/158940…
The 6th Cir disagreed w 10th Cir in a 2002 case. A unanimous panel found, w/o oral argument, that the FSIA’s silence re criminal immunity means that there are no exceptions to immunity for criminal proceedings, and thus no civil liability under RICO. 8/19 caselaw.findlaw.com/us-6th-circuit…
In the antitrust context, DOJ has set forth guidelines on when it is appropriate to pursue foreign state entities for antitrust violations, taking into account potential civil immunity, foreign sovereign compulsion, and other factors. 9/19 justice.gov/atr/internatio…
There haven’t been many decisions re grand jury subpoenas to foreign states--would have been fascinating to hear oral arg had courtroom not been sealed off. 10/19 jamiedupree.blog.ajc.com/2018/12/14/ent…
In a 2010 decision, the federal district court in Puerto Rico denied a motion to quash a grand jury subpoena issued to a Lithuanian-owned shipping company that claimed sovereign immunity. 11/19 courtlistener.com/opinion/247002…
In that case, USG argued that FSIA does not apply to “criminal investigations or actions.” Jurisdiction over the ship’s alleged illegal dumping of oil at sea was based on a statute (APPS), and the company’s agreement not to object to personal jurisdiction. 12/19
The district court agreed w the USG in that case that FSIA “does not shield [the company] from the exercise of … general criminal subject matter jurisdiction” under 18 USC 3231. 13/19 law.cornell.edu/uscode/text/18…
If you agree with the Puerto Rico federal district court rather than the DC Cir panel, you would leave FSIA out of the analysis and rely on 18 USC 3231 for subject-matter jurisdiction, and Fed R Crim P 17 for service of the subpoena (and thus personal jurisdiction). 14/19
Whether the foreign state-owned company could raise a due process objection to the court’s exercise of personal jurisdiction outside the FSIA will have to await another thread (and more facts). 15/19
One advantage of applying the FSIA is that its jurisdictional provisions are generally presumed to satisfy due process under the 5th Am, if the defendants are considered “persons” (an unresolved question). 16/19
Fed R Crim P 17 provides notice and an opportunity to be heard. But there could be a “minimum contacts” question. The panel indicated that the action here is “based upon” an act outside US territory that caused a “direct effect” in the United States. 17/19
I’ll be talking (and thinking) more about personal jurisdiction over foreign entities and 5th Am due process at the Sokol Colloquium @UVALaw on the Restatement (Fourth) of Foreign Relations Law in January, convened by @pbstephan3 18/19 law.virginia.edu/news/upcoming-…
Finally, the USG has argued that contempt sanctions are not available under the FSIA (presumably its view re crim cases would be different). A DC Cir panel previously rejected the USG’s view re FSIA (pace 5th Cir) & SCOTUS has not yet weighed in. 19/19 law.justia.com/cases/federal/…
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