The attorneys for the Turkish state-owned Halkbank and the US Attorney's Office in SDNY have both briefed their respective arguments on the issue of whether the case must be stayed while the defendant's appeal of the Court's denial of a dismissal on Foreign Sovereign Immunity Act grounds is pending before the Second Circuit. We present them here in abbreviated form for the convenience of our readers.
Government: The appeal is procedurally improper because it does not fall within the Collateral Order Exception, which must be strictly interpreted in criminal cases.
Defense: The Collateral-Order exception is equally applicable in both civil and criminal cases.
Government: The courts have repeatedly rejected interlocutory appeals of orders in criminal cases, denying dismissal on the grounds of subject-matter jurisdiction.
Defense: Sovereign immunity is a right not to be tried.
Government: the Second Circuit has held that FISA does not appear to grant immunity in criminal cases.
Defense: At least one other Circuit Court of Appeal has held that it does.
Government: there is no case in this circuit granting an interlocutory appeal on FISA grounds, in a criminal case.
Defense:There is a similar case pending in the 9th Circuit where the Government agreed to a stay.
Government: The D.C. Circuit has rejected a interlocutory appeal on FISA grounds.
Defense: the case cited is under seal, and it is impossible to know the Court's reasoning was, and whether it had anything to do with the government's arguments in this case.
A stray issue did surface in the defendant's reply to the government's response : Should the trial Court rule that it retains jurisdiction, it should grant a discretionary stay, due to likelihood of success on the merits, danger of irreparable injury to the defendant and other injury to other parties, and that a stay would be in the Public Interest .
We await the Court's decision.