RICHARD M. BERMAN, U.S.D.J.
On October 15, 2019, Türkiye Halk Bankasi A.S. ("Halkbank") was charged in a six count Indictment ("Indictment").
Halkbank is a prominent Turkish state-owned bank. The Turkish government owns 51% of Halkbank's stock through the Turkish Wealth Fund.
Halkbank's involvement in related proceedings predates the Indictment. On January
Halkbank funded Atilla's defense.
On the eve of Atilla's trial, Mr. Hruska, counsel to Halkbank, recruited two additional lawyers to serve as co-counsel to Atilla, namely, Todd Harrison, Esq. and Joseph Evans, Esq., of McDermott, Will & Emery, LLP.
On May 16, 2018, Atilla was sentenced to 32 months' imprisonment. Judgment, dated May 16, 2018, at 3. Upon Atilla's release from incarceration in the U.S. and his return to Turkey, Turkish Finance Minister Berat Albayrak announced that Atilla had been appointed as the head of Turkey's stock exchange, Borsa Istanbul.
Immediately following the Indictment, the Court issued a summons ("First Summons") directing Halkbank to appear on October 22, 2019 at 9:15 a.m. for arraignment.
On the same day that the Government delivered the First Summons to King & Spalding, Halkbank published an "Investor Relations Disclosure" on its website, among other things, acknowledging the Indictment and its cooperation with U.S. officials. "This Bank has been informed that the U.S. Attorney's Office for the Southern District of New York, under the U.S. Department of Justice, has taken the decision to engage in due process to prosecute the Bank based on an indictment related to the allegations made during the Atilla trial.... Per our past disclosures on numerous occasions, certain U.S. authorities have been asking Halkbank for records and information pertaining to allegations made during the Atilla trial, which led the Bank to closely cooperate with these authorities and also initiate an independent investigation of its own on a voluntary basis." Gov. Letter, dated Oct. 22, 2019, at 8, ECF No. 565.
Notwithstanding Halkbank's extensive commercial dealings with the U.S. and its recent high level negotiations with the U.S., and coupled with Halkbank's involvement in the
It should be noted that Federal Rule of Criminal Procedure 4 was amended in 2016 to enable the Government more easily to make service upon foreign corporations.
The Court also provided Halkbank with an opportunity to cure its noncompliance by issuing a second summons ("Second Summons") which directed Halkbank to appear on November 5, 2019 at 11:00 a.m.
The Government also sent the Second Summons and the Indictment by FedEx to Halkbank's legal department at Halkbank's headquarters in Istanbul.
There can be no doubt that Halkbank was notified of the charges against it.
Following the arrests of Zarrab and Atilla in the U.S. and after their respective arraignments, an extraordinary, sustained series of Turkey-initiated state to state meetings, contacts, and involvements began —outside the courtroom—between and among Turkish and U.S. officials, lobbyists and attorneys.
More recently, the objective of the campaign, following the conviction of Mr. Atilla on January 3, 2018, appears to have been to avoid Halkbank being indicted and, relatedly, to avoid Halkbank having to pay a potential fine. This effort appears to have failed prior to the Halkbank Indictment on October 15, 2019. According to reporting by the New York Times:
Eric Lipton,
On November 4, 2019, Mr. Hruska sent a letter to the Court stating that "Halkbank has retained us to represent it in [this case] for a limited purpose, and we do not concede the acceptance of service nor enter a general appearance on behalf of Halkbank by submitting this request. The Bank has refused to accept service and has not stipulated to service by any means.... [C]ounsel for Halkbank respectfully requests leave to enter a limited and special appearance for the purpose of filing a motion to dismiss for lack of personal jurisdiction and a motion seeking this Court's recusal from this case." Def. Letter, dated Nov. 4, 2019, at 1.
The Government opposed Mr. Hruska's application, arguing that it is an "empty delay tactic"; that it "serves no legitimate purpose"; and that there is clearly "no established tradition of special appearances in criminal cases."
On November 5, 2019, the Court held oral argument.
The Government, in turn, contended that Halkbank's "refusal [to appear for arraignment] shows [] there is certainly an air of gamesmanship here with the bank's request to make a special appearance.... Instead, it appears that what Halkbank is trying to do is to deny the jurisdiction of the Court to attempt to move to dismiss the indictment with no commitment whatsoever that it is going to remain in the case and answer the charges if it does not get its preferred ruling."
At the conclusion of oral argument, the Court directed the parties to submit additional letter briefs.
On November 19, 2019, King & Spalding submitted a letter repeating (with some exceptions) arguments set forth in their
On November 26, 2019, the Government opposed Halkbank's application, arguing that "concepts of personal jurisdiction found in civil suits simply do not apply in criminal cases: the Court's jurisdiction is established by an indictment that sufficiently alleges violations of federal criminal law, and the application of the charges to a particular defendant complies with due process so long as there is a sufficient nexus between the defendant and the United States, so that such application would not be arbitrary or fundamentally unfair." Gov. Letter, dated Nov. 26, 2019, at 1 (internal citations and quotation marks omitted).
"`[F]eigning ignorance of a criminal summons of which the foreign organization does have notice (either by declining to appear, or by appearing and denying knowledge) is not a legitimate interest the criminal rules should protect.'"
Federal Rule of Criminal Procedure 4 was amended in 2016 to permit service "on an organization not within a judicial district of the United States ... by any other means that gives notice." Fed. R. Crim. P. 4(c)(3)(D). The modification was intended to "remove an unnecessary impediment to the initiation of criminal proceedings against organizations that commit domestic offenses but have no place of business or mailing address within the United States."
There is no evidence of "a longstanding historical practice of allowing special appearances in criminal cases."
18 U.S.C. § 3231 provides that district courts of the United States shall have original jurisdiction ... of all offenses against the laws of the United States. "In the criminal context, 18 U.S.C. § 3231 is all that is necessary to establish a court's power to hear a case involving a federal offense ..."
"[D]ue process of law is satisfied when one present in court is convicted of crime after having been fairly apprised of the charges against him and after a fair trial in accordance with constitutional procedural safeguards."
"[T]he extent of [a] statute's extraterritorial reach is not an issue related to the court's jurisdiction: `[T]o ask what conduct [a statute] reaches is to ask what conduct [the statute] prohibits, which is a merits question. Subject-matter jurisdiction, by contrast, refers to a tribunal's power to hear a case.'"
The fugitive disentitlement doctrine "exists precisely to guard against defendants ... that `attempt to invoke from a safe distance only so much of a United States court's jurisdiction as might secure him a dismissal while carefully shielding himself from the possibility of a penal sanction.'"
As discussed at pp. 31-32 above, defense counsel emphasizes that Halkbank is
The defense's disparate jurisdictional arguments include the following: (i) "the Bank's incidental contacts with the U.S. are insufficient to establish either general or specific personal jurisdiction over the Bank;" (ii) "Halkbank is a Turkish corporation headquartered in Istanbul with no U.S. offices or physical operations in the United States;" and (iii) Halkbank's "conduct alleged in the indictment has no connection to the U.S. sufficient to create jurisdiction." Def. Letter, dated Nov. 4, 2019, at 2. Construed in the light most favorable to Halkbank, the defense appears to challenge extraterritoriality and/or the lack of a connection or nexus between Halkbank and the U.S. sufficient to satisfy the constitutional requirement of fairness. "In order to apply extraterritorially a federal criminal statute to a defendant consistently with due process, there must be a sufficient nexus between the defendant and the United States, so that such application would not be arbitrary or fundamentally unfair." Gov. Letter, dated Nov. 26, 2019, at 9 (quoting
The Court has found no instance where a special appearance was required to seek recusal. Recusal motions are generally made after the parties appear, and are resolved swiftly by the court because "a prompt application affords the district judge an opportunity to assess the merits of the application before taking any further steps...."
Defense counsel in his submissions refers to the idea that this is a "high profile" case and is "widely publicized", perhaps suggesting somehow that high profile qualifies his client, Halkbank, for a special appearance.
Halkbank's proposal to make a "limited and special appearance" to challenge the Court's personal jurisdiction is denied. As the Ninth Circuit has recently pointed out, there is no "evidence of a longstanding historical practice of allowing special appearances in criminal cases."
There is a good reason for the paucity of cases supporting Halkbank's application.
Halkbank's reliance upon minimum contacts jurisprudence is simply misplaced. "A federal district court has personal jurisdiction to try any defendant brought before it on a federal indictment charging a violation of federal law."
A recent (2017) decision which is on point is
The Ohio court examined the (few) criminal cases which assessed minimum contacts and it concluded that each of those cases was either "distinguishable" or an "outlier."
Halkbank "has two reasonable choices: it can either appear in a U.S. court to raise any legitimate defense or it can choose not to appear and face any attendant risks."
The cases which Halkbank relies upon are not persuasive. They do not include any case from the Second Circuit where a special appearance was entertained to address minimum contacts or recusal in a criminal matter. The three cases which appear most germane do not support Halkbank's cause and are discussed immediately below. (Halkbank's other authorities are distinguished in Exhibit B attached hereto.) None of Halkbank's cases involves a special appearance to move for recusal.
Here is the Court's assessment of the three principal cases put forward by Halkbank in its opening brief.
In
The district court in
In the
The Massachusetts District Court held that "the mere service of process on an agent or officer of an alien corporation within the United States does not without more establish the jurisdiction of a federal court over an alien corporation. Rather, as this Court has previously decided in the context of a civil matter, service of such process is only effective to create in personam jurisdiction where a defendant has sufficient contacts with the United States."
This Court agrees with the
In
In its
Even though the Court rejects Halkbank's request to make a special appearance, Halkbank faces no prejudice because it is entitled to litigate recusal and jurisdiction following arraignment.
It is a court's obligation to deal with a recusal request expeditiously. This was the approach the Court followed in the
Defense counsel Brafman responded: "Might I add, your Honor, that with all modesty, you have proven me correct. I was familiar with your Honor's remarks and appearance in Istanbul because, in our thoroughness, we try and follow everything that everyone does. And ... so I said that the first thing the judge is going to do is raise the fact that he participated in the panel, so I'm glad that you proved me correct.... [M]y experience here has allowed me to conclude that you are indeed a fair and impartial judge...."
Similarly, there is no prejudice to Halkbank as a result of the Court's rejection of Halkbank's personal jurisdiction claim based upon minimum contacts. Halkbank is free to argue absence of U.S. contacts or conduct following arraignment.
In
It is not necessary to reach the fugitive disentitlement issue because the Court has already denied (in Sections III (1) and (2) above) Halkbank's motion to make a special appearance. If the Court were to reach this issue, it would almost certainly conclude that the fugitive disentitlement doctrine applies and that the doctrine's principles would render Halkbank a fugitive.
"[T]he fugitive disentitlement doctrine `disentitles [a] defendant to call upon the resources of the Court for determination of [its] claims' while [it] remains a fugitive."
Halkbank unpersuasively asserts that "[a]s a corporation, Halkbank cannot be a `fugitive' since it has no physical body to present and can appear before the court in any case only through representatives such as its legal counsel."
The Court agrees with the Government that "[t]he principles underlying the disentitlement doctrine apply equally to a corporate defendant as to an individual defendant." Gov. Letter, dated Nov. 26, 2019, at 8. "There is no reason ... why a corporate defendant like Halkbank, which has been served with two summonses and
Moreover, Congress has explicitly authorized the applicability of the fugitive disentitlement doctrine to corporations. 28 U.S.C. § 2466 permits a court to "disallow a person from using the resources of the courts of the United States in furtherance of a claim in any related civil forfeiture action or a claim in third party proceedings in any related criminal forfeiture action" if the person in order to avoid criminal prosecution purposefully leaves or declines to enter or re-enter the jurisdiction of the United States or otherwise evades the jurisdiction of the court in which a criminal case is pending.
Halkbank's argument that the fugitive disentitlement doctrine does not apply because Halkbank is "not present in the United States [and] did not flee the jurisdiction" is also unavailing — and unsupported.
Halkbank has failed to appear following the service of two summonses, with full knowledge and notice of the charges in the Indictment and of the related
For the reasons stated above, the Court denies Halkbank's application, dated November 19, 2019, to make a special appearance.
Case Distinguishing Factors
Ford v. United States , 273 • Foreign defendants (individuals) appealed from a judgment of
U.S. 593 (1927) conviction, alleging lack of personal jurisdiction because they
were arrested through an "illegal seizure." In 1927, the
Supreme Court affirmed the convictions, concluding that the
defendants "waive[d] the question of the jurisdiction of the
persons of defendants" by failing to raise the issue through "a
plea to the jurisdiction," which "must precede th[e] plea of not
guilty." Id. at 606. The Supreme Court also ruled that the
lower court had personal jurisdiction "because [defendants]
were actually in its custody." Id. at 606-07.
• Defendants challenged the court's jurisdiction after appearing.
• Defendants were individuals, not a corporation.
• No special appearance was sought.
• Federal Rule of Criminal Procedure 12 subsequently
"abolishe[d] pleas to the jurisdiction." See Fed. R. Crim. P. 12.
Advisory Committee's Note to 1944 Enactment.
• There was no motion to dismiss for lack of minimum contacts
nor a recusal motion.
United States v. Beadon , • Defendant corporations appealed from a judgment of
49 F.2d 164 (2d Cir. conviction, alleging lack of personal jurisdiction because "[t]he
1931) court erred in holding that defendant[-corporations] were in
court and were bound to plead to the indictment." Id. at 166.
The Second Circuit affirmed the convictions, finding that there
was "no merit in the contention of the corporate defendants that
they were not in court" because "the record showed that they
had appeared by attorneys." Id.
• Defendants challenged the court's jurisdiction after appearing.
• No special appearance was sought.
• There was no motion to dismiss for lack of minimum contacts
nor a recusal motion.
United States v. Kolon • Defendant foreign corporation sought to make a special
Ind. , 926 F. Supp. 2d 794 appearance to dismiss indictment for lack of personal
(E.D. Va. 2013) jurisdiction because the foreign corporation defendant did not
have an address in the United States. The district court
entertained the application because the Government did not
oppose it. But, the district court denied the motion to dismiss
concluding that the Federal Rule of Criminal Procedure 4
mailing requirement was not "a necessary prerequisite to the
exercise of jurisdiction over a foreign corporation." "It is
doubtful that Congress would stamp with approval a procedural rule permitting a foreign corporate defendant to intentionally violate the laws of this country thereby causing harm to its citizens, yet evade the jurisdiction of United States' courts by purposefully failing to establish an address here." Id. at 802. • Special appearance was not opposed. • Case is outside the Second Circuit. • Pre-2016 amendment to Rule 4. • Criticized by the Ninth Circuit in In re Pangang Grp. Co., because the court, "without explanation or critical examination, permitted [a] criminal defendant[] to enter [a] special appearance[] to raise threshold objections." 901 F.3d at 1057-58. • There was no motion to dismiss for lack of minimum contacts nor a recusal motion.United States v. Dotcom , • Defendant foreign corporation sought to make a special No. 1:12-cr-00003, 2012 appearance to dismiss indictment for lack of personal WL 4788433 (E.D. Va. jurisdiction because the foreign corporation defendant did not Oct. 5, 2012) have an address in the United States. The district court entertained the application without explanation. But, the district court denied the motion to dismiss, concluding that "so long as the government could prove that an individual defendant is an alter ego of the corporate defendant, the government could satisfy Rule 4's mailing requirement by mailing a copy of the summons to one of the individual defendants" following extradition to the U.S.Id. , at *2. • The defendant foreign corporation also sought to make additional special appearances related to storage of the defendant's electronic data and the return of data stored on the defendant's servers. The district court allowed the defendant "to appear ... for the purpose of [each] hearing ... on a limited basis," without explaining its reasoning.Id. , ECF No. 84, at 27;id. , ECF No. 148, at 1. • Case is outside the Second Circuit. • Pre-2016 amendment to Rule 4. • There was no motion to dismiss for lack of minimum contacts nor a recusal motion.
United States v. Yousef , • Defendant (individual) appealed from judgment of conviction, 327 F.3d 56 (2d Cir. alleging violation of the "doctrine of specialty" which 2003) "prohibits prosecution of a defendant for a crime other than the crime for which he has been extradited."Id. at 115. The Second Circuit affirmed the conviction, concluding that the defendant "forfeited any argument on the doctrine of specialty when he failed to assert it in his initial appellate brief."Id. at 115-16. • Defendant challenged the court's jurisdiction after appearing. • Defendant was an individual, not a corporation. • No special appearance was sought. • There was no motion to dismiss for lack of minimum contacts nor a recusal motion.United States v. Noriega , • Defendant (General Manuel Antonio Noriega, the de facto head 683 F. Supp. 1373 (S.D. of state of Panama) sought to make a special appearance to Fla. 1988) and 746 F. dismiss indictment, alleging improper extraterritorial Supp. 1506 (S.D. Fla. application of U.S. law and asserting sovereign immunity. The 1990) district court entertained the special appearance.See 683 F. Supp. at 1374. But, the district court denied the motion to dismiss, concluding that "[j]urisiction over Defendant's extraterritorial conduct [was] appropriate both as a matter of international law and statutory construction," and the defendant was not entitled to immunity. 746 F. Supp at 1519-26. • The district court granted the request for a special appearance because the indictment of "the de facto head of a foreign government" was "surrounded with special circumstances." 683 F. Supp. at 1374. It was "not stating that as a matter of law any fugitive criminal defendant may contest the validity of his indictment. The precedential value of such a discretionary ruling will, necessarily, be minimal."Id. • Defendant was an individual, not a corporation. • Case is outside the Second Circuit. • The district court's reasoning for granting a special appearance was rejected by its Circuit Court of Appeals in United States v. Shalhoub, 855 F.3d 1255, 1265 (11th Cir. 2017) (if the defendant "wants to challenge the indictment, he need only submit himself to the jurisdiction of the district court"). • There was no motion to dismiss for lack of minimum contacts nor a recusal motion.United States v. Siriwan , • Defendants (individuals) sought to make a special appearance to No. 2:09-cr-00081, 2011 dismiss indictment, alleging improper extraterritorial WL 13057709 (C.D. Cal. application of U.S. law and the Government's failure to state an July 28, 2011) offense. The district court entertained the application for a special appearance—which was unopposed—without explanation. But, the district court never ruled on the motion to dismiss, and the Government eventually dismissed the
indictment after the defendants were convicted in their home country. • Defendants were individuals, not a corporation. • Special appearance was not opposed. • Case is outside the Second Circuit. • Unique circumstances: defendants were indicted and convicted in their home country. • There was no motion to dismiss for lack of minimum contacts nor a recusal motion. In re Hijazi , 589 F.3d 401 • Defendant (individual) sought to dismiss indictment, alleging (7th Cir. 2009) improper extraterritorial application of U.S. law, lack of subject-matter jurisdiction, and violations of the Sixth Amendment and the Speedy Trial Act. The district court refused to consider the motion to dismiss until the defendant appeared and was arraigned. Instead of appearing for arraignment, the defendant sought a writ of mandamus from the Seventh Circuit directing the district court to consider his motion to dismiss. The Seventh Circuit directed the district court to decide the motion to dismiss, reasoning that because the defendant "is under no obligation to travel to the United States, and as long as he does not enter the country, he cannot forcibly be brought before the Central District of Illinois for his arraignment ... resolution of Hijazi's claims—and for that matter, resolution of the government's right to proceed with this case—will not be forthcoming through the usual procedures." 589 F.3d at 407. • Defendant was an individual, not a corporation. • No special appearance was sought. • Case is outside the Second Circuit. • The ruling was subsequently limited by the Seventh Circuit.See In re Kashamu , 769 F.3d 490, 494 (7th Cir. 2014) (where the Seventh Circuit refused to direct the district court to rule on a fugitive's motion to dismiss the indictment for lack of personal jurisdiction and violation of the Speedy Trial Clause of Sixth Amendment, concluding that "[i]f he wants to fight the charges, he has only to fly from Lagos to Chicago; there are loads of reasonably priced flights"). • The determination to allow a fugitive to file a motion to dismiss without appearing has also been rejected by two other Circuit courts. InUnited States v. Martirossian , 917 F.3d 883 (6th Cir. 2019), the Sixth Circuit held that the fugitive defendant "ha[d] a readily available means of obtaining a ruling on his motion to dismiss the indictment." He could "show up in the Southern District of Ohio, and the court as promised [would] decide his motion."Id. at 889. InUnited States v. Shalhoub , 855 F.3d 1255 (11th Cir. 2017), the Eleventh Circuit similarly concluded:
"[n]otwithstanding what the Seventh Circuit has stated on this issue [in Hijazi ] ... we submit that Shalhoub has an adequate remedy appearance in the district court."Id. at 1265. • There was no motion to dismiss for lack of minimum contacts nor a recusal motion.United States v. Tucor • Defendant corporation sought to make a special appearance toInt'l, Inc. , 35 F. Supp. 2d dismiss indictment, asserting immunity under the Shipping Act 1172 (N.D. Cal. 1998) of 1984, 46 U.S.C. § 40307. The district court entertained the application without explanation and granted the motion to dismiss, concluding that "the indictment allege[d] conduct for which defendants are immune from criminal liability."Id. at 1185. • Case is outside the Second Circuit. • Criticized by the Ninth Circuit inIn re Pangang Grp. Co. , because the court, "without explanation or critical examination, permitted [a] criminal defendant[] to enter [a] special appearance[] to raise threshold objections." 901 F.3d at 1057-58. • There was no motion to dismiss for lack of minimum contacts nor a recusal motion.United States v. Sinovel • Defendant foreign corporation sought to make a specialWind Grp. Co. , No. 3:13-cr-00084 appearance to quash service of indictment, alleging that service (W.D. Wis. Oct. of process on counsel for the defendant was insufficient. The 20, 2017), ECF No. 348 district court entertained the application for a special appearance—which was unopposed—without explanation. But, the district court denied the motion to quash, concluding that "sending the summons to Sinovel's counsel and filing it on ECF provided the actual notice to Sinovel," and "that nothing more is required under Rule 4(c)(3)(D)."Id. at 18. • Special appearance was not opposed. • Case is outside the Second Circuit. • Criticized by the Ninth Circuit inIn re Pangang Grp. Co. , because the court, "without explanation or critical examination, permitted [a] criminal defendant[] to enter [a] special appearance[] to raise threshold objections." 901 F.3d at 1057-58. • There was no motion to dismiss for lack of minimum contacts nor a recusal motion.United States v. Pangang • Defendant foreign corporation sought to make a specialGrp. Co. , 2017 WL appearance to quash service of indictment, alleging that service 3034063 (N.D. Cal. July on counsel for the defendant was insufficient. The district court 18, 2017) entertained the application for a special appearance—which was unopposed—without explanation. But, the district court denied the motion to quash, concluding that "the Government served the [foreign corporate] defendants using a `means that gives notice,'" as required by Rule 4.Id. at *3.
• Special appearance was not opposed. • Case is outside the Second Circuit. • Special appearance was rejected by the Ninth Circuit in In re Pangang Grp. Co. , 901 F.3d 1046, 1057 (9th Cir. 2018) (finding no "evidence of a longstanding historical practice of allowing special appearances in criminal cases"). • There was no motion to dismiss for lack of minimum contacts nor a recusal motion.United States v. Alfred L. • Defendant foreign corporation sought to make a specialWolff GmbH , No. 1:08-cr-00417, appearance to quash service of indictment because foreign 2011 WL corporation defendant did not have an address in the United 4471383 (N.D. Ill. Sept. States. The district court entertained the application without 26, 2011) explanation and granted the motion to quash because, "given the facts before the Court, the government ha[d] not met its heavy burden under a veil piercing analysis" to show that the domestic subsidiaries were alter egos of the foreign corporate defendant.Id. at *4. • The foreign corporate defendants later ceased operations and "sold" their assets to other corporations, and the Government dismissed the indictments against them. • Case is outside the Second Circuit. • Pre-2016 amendment to Rule 4. • There was no motion to dismiss for lack of minimum contacts nor a recusal motion.United States v. Johnson • Defendant foreign corporation entered a special appearance onMatthey Plc. , 2:06-cr-00169, the docket without requesting permission in advance. 2007 WL 634269 Defendant sought to quash service of indictment because it did (D. Utah Feb. 26, 2007) not have an address in the United States. The district court and 2007 WL 2254676 granted the motion to quash, concluding that "service upon the (D. Utah Aug. 2, 2007) subsidiary is not sufficient service on the parent company." 2007 WL 2254676, at *2. • Special appearance was not opposed. • Case is outside the Second Circuit. • Pre-2016 amendment to Rule 4. • There was no motion to dismiss for lack of minimum contacts nor a recusal motion.United States v. Pub. • Defendant foreign corporation entered a special appearance onWarehousing Co. , No. the docket without requesting permission in advance. 1:09-cr-00490 (N.D. Ga. Defendant sought to quash service of indictment because Nov. 19, 2009), ECF No. foreign corporation defendant did not have an address in the 165 United States. The district court denied the motion to quash, concluding that "enough evidence ha[d] been presented to indicate that Agility Holdings[, a domestic subsidiary,] was the alter ego or conduit of PWC," the foreign corporate defendant.Id. at 18.
• Special appearance was not opposed. • Case is outside the Second Circuit. • Pre-2016 amendment to Rule 4. • There was no motion to dismiss for lack of minimum contacts nor a recusal motion. United States v. Swank • Defendant (individual) sought to make a special appearance toCorp. , 797 F. Supp. 497 modify a restraining order to release assets so the defendant (E.D. Va. 1992) could fund his legal defense. The district court entertained the special appearance without explanation. But, the district court substantially denied the request to modify because "[a]ssets that have been targeted and restrained as potentially forfeitable cannot be used to pay legal fees."Id. at 504. • Defendant was an individual, not a corporation. • Case is outside the Second Circuit. • There was no motion to dismiss for lack of minimum contacts nor a recusal motion.United States v. • Defendant (individual) sought to make a special appearance toRafiekian , No. 1:18-cr-457 oppose Government's request for application of the crime-fraud (E.D. Va. Sept. 24, exception. The Government opposed the request for a special 2019), ECF. No. 213 appearance because the defendant "has chosen to remain a fugitive and [] forfeit[ed] this opportunity." The district court allowed the defendant "to appear solely for the purposes of the government's motion on the crime-fraud exemption," but did not explain its reasoning.Id. at 3. • Defendant was an individual, not a corporation. • Case is outside the Second Circuit. • There was no motion to dismiss for lack of minimum contacts nor a recusal motion.United States v. Mitchell , • Former President Richard M. Nixon sought to make a special 377 F. Supp. 1326 appearance to quash a subpoena, arguing, among other things, (D.D.C. 1974) that "court[s] are without authority to rule on the scope or applicability of executive privilege when asserted by the President."Id. at 1329. The district court entertained the application for a special appearance—which was unopposed— without explanation. But, the district court denied Nixon's motion to quash, concluding that the President's contention that the court does not have jurisdiction "is without legal force in this Circuit."Id. The Supreme Court affirmed. • Defendant was an individual, not a corporation. • Special appearance was not opposed. • Case is outside the Second Circuit. • Unique circumstance: the movant was President Richard M. Nixon who sought to quash subpoena seeking production of the Watergate tapes which the special prosecutor sought to use in
the criminal trial of John Mitchell, the former U.S. Attorney General. • There was no motion to dismiss for lack of minimum contacts nor a recusal motion. United States v. Stein , 435 • Defendant-employees (individuals) sought an order requiring F. Supp. 2d 330 (S.D.N.Y. their employer to advance legal defense fees for their criminal 2006) prosecution. The employer objected on the ground that the district court did not have personal jurisdiction over the employer as a non-party to the criminal proceedings. The district court stated that it "is arguable that [the employer's] actions before the Court constituted a general appearance," because the employer "has long been well aware of these proceedings" and "attended the hearing and submitted papers."Id. at 378. The district court directed the defendant-employees to file a civil suit against the employer to secure their legal defense fees. It did not adjudicate the motion in the criminal proceeding. • No special appearance was sought. • The employer was not a defendant in the criminal action. • There was no motion to dismiss for lack of minimum contacts nor a recusal motion.Schleifer v. Lexus of • Defendant corporation sought to dismiss complaint for lack ofManhattan , 2019 WL personal jurisdiction, alleging that the defendant corporation 4640055 (S.D.N.Y. 2019) had been dissolved. In fact, another corporation with a very similar name had been formed to take over the operations of the dissolved entity. The district court denied the motion to dismiss, concluding that the use of "an incorrect variation on a name in a summons and complaint is merely a technical defect" and "is not grounds to dismiss Plaintiff's claims."Id. at *2. • Defendant challenged the court's jurisdiction after appearing. • No special appearance was sought. • Civil case, not a criminal prosecution. • There was no motion to dismiss for lack of minimum contacts nor a recusal motion.
Gov. Letter, dated Nov. 26, 2019, at 3-4.
The Americans who appear for the most part to have been on the receiving end of these efforts include, among others, President Donald J. Trump; Joe Biden, former Vice President of the United States; Loretta Lynch, former United States Attorney General; Steven Mnuchin, United States Secretary of the Treasury; and Rex W. Tillerson, former United States Secretary of State.
Rudolph W. Giuliani, former New York City Mayor and former United States Attorney for the Southern District of New York and Michael B. Mukasey, former United States Attorney General & former Chief District Judge of the Southern District of New York participated on behalf of Defendant Reza Zarrab. Mr. Hruska, of King & Spalding, participated as counsel to Halkbank.
The
