The Foreign Sovereign Immunities Act, 28 U.S.C. §1602 et seq. (FSIA), is silent on the issue of criminal immunity for foreign sovereigns. The Tenth and Sixth Circuits disagree on the meaning of this silence: The U.S. Court of Appeals for the Tenth Circuit holds that the FSIA does not provide criminal immunity for foreign sovereigns, and the U.S. Court of Appeals for the Sixth Circuit holds that it does.
This circuit split regarding criminal immunity also governs whether foreign sovereigns are necessarily immune from civil claims under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§1961-1968 (RICO). To impose civil RICO liability, a plaintiff must establish a defendant’s “pattern of racketeering activity.” RICO defines “racketeering activity” to include various indictable acts. As the Sixth Circuit reasons, if a party cannot be indicted (because of its immunity), then it cannot commit an indictable act. And, if a party cannot commit an indictable act, then it cannot be civilly liable under RICO.
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