In Keller v. Central
Bank of Nigeria, 2002 U.S. App. LEXIS 660 (6th Cir.
2002), the United States Court of Appeals for the Sixth
Circuit held, in vacating the decision of the District Court
for the Northern District of Ohio, that a claim under the
Racketeer Influenced and Corrupt Organizations Act of 1970
("RICO") could not be maintained against a foreign
sovereign. One of the elements that must be established
under RICO is that the defendant engaged in "racketeering
activity." The RICO statute defines "racketeering
activity" as acts which are "chargeable,"
"indictable" or "punishable" under various
state and federal statutes. 18 U.S.C. §1961(1). Thus,
in the Sixth Circuit, we argued that because the Foreign
Sovereign Immunities Act conferred immunity upon a foreign
sovereign from criminal prosecution in the United States
courts, a foreign sovereign could not be charged, indicted
or punished with a crime. Therefore, we further argued,
that a RICO claim could not be maintained against a foreign
sovereign because the element of "racketeering activity"
could not be proven. The Sixth Circuit adopted this position
in ordering that the RICO claim be dismissed.
The
decision of the Sixth Circuit in Keller is significant because
it is the first decision by an appellate court to hold that
foreign sovereigns are immune from civil RICO claims. The
only other appellate court to address this issue, the Tenth
Circuit in Southway v. Central Bank of Nigeria, 198 F.3d
1210 (10th Cir. 1999), reached the opposite conclusion.
The Sixth Circuit expressly rejected the Southway
decision in this regard.
