New Split on Fugitive-Disentitlement Appeals

Sometimes a fugitive defendant’s lawyer will appear in court to challenge the charges against the defendant. The defendant—who has failed to appear, evaded capture, or fled the jurisdiction—is absent. Yet the defendant hopes that the district court will dismiss some or all of the charges before the defendant submits to the court’s jurisdiction. The defendant thereby avoids the risk of confinement and conviction while hoping to obtain a favorable outcome.

District courts can refuse to consider these challenges under what’s called the fugitive-disentitlement doctrine. The doctrine allows a district court to demand the defendant’s presence before ruling on any challenges to an indictment.

In United States v. Bescond, a split Second Circuit held that defendants can immediately appeal from a fugitive-disentitlement order. A majority of the court determined that these orders are appealable via the collateral-order doctrine. Disentitlement orders, the majority said, impose severe harms on defendants and must be reviewed immediately if they are to be reviewed at all. In so holding, the Second Circuit split with the Sixth and Eleventh Circuits, which have dismissed appeals from fugitive-disentitlement orders. Dissenting, Chief Judge Livingston contended that fugitive-disentitlement orders do not involve sufficiently important interests to warrant an immediate appeal.

The Bescond Prosecution

The defendant in Bescond was a French banker residing in Paris. She was allegedly involved in a scheme to manipulate the London Interbank Offered Rate (or “LIBOR”). Simplifying a fair bit, the defendant directed employees at her bank to submit false reports on the rate at which the bank borrowed unsecured funds. These false reports artificially lowered the LIBOR. And this artificially lowered LIBOR affected the price of Eurodollar futures contracts, which are traded on the Chicago Mercantile Exchange.

The government charged the defendant with violating the Commodity Exchange Act. But the defendant remained in France, which will not extradite her. Through counsel, the defendant moved to dismiss the indictment on a variety of grounds, including improper extraterritorial application of the Commodity Exchange Act and insufficient nexus with the United States.

The district court declined to decide the defendant’s motion. The defendant was a fugitive, and the district court exercised its discretion to apply the fugitive-disentitlement doctrine. As an alternative ruling, the district court denied the motion to dismiss on extraterritoriality and nexus grounds.

The defendant then appealed to the Second Circuit.

The Majority Allows a Fugitive-Disentitlement Appeal

A split panel held that it had “jurisdiction under the collateral order doctrine to review an order disentitling a foreign citizen who has remained at home abroad.”

The collateral-order doctrine allows appeals from district court orders that (1) conclusively resolve an issue, (2) present an important issue that is separate from the merits, and (3) would be effectively unreviewable in an appeal after a final judgment. Walking through the elements, everyone (the government, defendant, panel majority, and dissent) agreed that the district court had conclusively decided the disentitlement issue.

As for the second element, the majority thought that a fugitive-disentitlement order presented an important issue given the risk of detention:

As long as [the defendant] is disentitled, she cannot mount a defense unless she travels to the United States, thereby risking pre-trial detention and trial in a foreign country and causing an extended absence that could jeopardize her career and would cut off her income (which, incidentally, is the sole support of her family).

Disentitlement thus imposed a severe harm on the defendant. The majority thought that disentitlement was especially severe in Bescond, as it prevented the defendant from challenging extraterritoriality—i.e., whether the law she allegedly violated reached her conduct outside of the United States. A fugitive-disentitlement order, the majority said, is also no less important than other orders that are immediately appealable via the collateral-order doctrine. And the disentitlement issue was separate from the defendant’s guilt. Granted, there was some overlap in the district court’s determination that the defendant was a fugitive and the challenge to the Commodity Exchange Act’s extraterritoriality. But the issues were sufficiently distinct.

Finally, the majority concluded that review had to be immediate were there to be any effective review. So long as the defendant remained in France, the fugitive-disentitlement order would prevent her from obtaining a judicial decision on her challenges to the indictment. And so long as she remains a fugitive, there will be no trial or further proceeding that would produce an appealable decision. Alternatively, should the defendant surrender, the fugitive-disentitlement issue will become moot—the district court would lift the disentitlement order and decide her motion to dismiss.

On the merits of the appeal, the majority reversed the fugitive-disentitlement order.

Chief Judge Livingston’s Dissent

Chief Judge Livingston dissented. As she saw things, fugitive-disentitlement orders are not sufficiently important to displace the normal rules governing appeals. Nor are those orders separate from the merits. And fugitive-disentitlement orders can be effectively reviewed after a final judgment.

On the first point, the fugitive-disentitlement order did not implicate a sufficiently important right. The defendant could defend herself by submitting to the court’s jurisdiction with all of its attendant due process protections. The “right” that the defendant invoked, Chief Judge Livingston explained, was actually a right to the adjudication of “rulings favorable to herself while at the same time making clear her refusal to comply with any unfavorable result.” There’s no right to non-mutual litigation. Indeed, the fugitive-disentitlement doctrine exists to prevent it. And any interest the defendant had in clearing her name could be vindicated like any other defendant: by defending the charges against her.

As for whether fugitive-disentitlement orders are sufficiently separate, Chief Judge Livingston saw substantial overlap in the disentitlement order and the defendant’s argument against the Commodity Exchange Act’s extraterritoriality. The defendant in Bescond argued that she was not a fugitive because she is “a French citizen with virtually no connection to the United States” who is not alleged to have “perform[ed] any acts within the country.” The defendant raised similar points in arguing that the Act does not apply to her. Immediate review of the disentitlement order thus risked immediate review of the extraterritoriality defense.

Chief Judge Livingston also contended that an appeal after a final judgment would suffice. This determination stemmed largely from her conclusion that the fugitive-disentitlement order did not involve a sufficiently important interest that delayed review would imperil. Chief Judge Livingston also acknowledged that a defendant’s fugitive status is moot as soon as the defendant surrenders. But that’s the case for all fugitives. And there’s no right not to be labeled—and not to face the consequences of being labeled—a fugitive.

Chief Judge Livingston also noted the potential scope of the majority’s holding. To be sure, the majority framed its holding as applying to “an order disentitling a foreign citizen who has remained at home abroad.” But that might include a variety of defendants, and there would be litigation to determine who falls within that category. Further, there was no real basis for limiting the decision to fugitive-disentitlement orders. The majority emphasized a disentitlement order’s penalizing a defendant for staying home. The same could be said, however, for a decision refusing to dismiss the charges against a foreign defendant:

The trial cannot proceed in the defendant’s absence. But such a defendant will surely claim that the harms visited by virtue of the pending indictment are no less severe than the fugitive disentitlement order itself—so that interlocutory review of his motion to dismiss is also imperative, lest he be penalized for staying home. Given the reasoning in the majority opinion, by what principle would this argument be rejected?

A New Circuit Split on Fugitive-Disentitlement Appeals

As the Bescond majority recognized, its decision created a circuit split. Both the Sixth and Eleventh Circuits have dismissed appeals from fugitive-disentitlement orders, holding that these orders fail to meet the collateral-order doctrine’s requirements.

I have not yet thought this issue through. But I think I side with Chief Judge Livingston.

For one thing, fugitive-disentitlement orders can involve substantial overlap with the merits, as cases involving extraterritoriality illustrate. Sure, not all cases will involve this overlap. But collateral-order decisions are supposed to be categorical—either a type of order is always appealable via the doctrine, or it never is. Case-specific considerations should not affect appealability. The risk of overlap in some cases might be enough to deny appealability.

For another thing, fugitive-disentitlement orders don’t seem to merit an immediate right to appeal. What’s really at stake in these cases is not whether the defendant is a fugitive. It’s the consequences of being labeled a fugitive. These cases involve defendants’ claiming a right to the pretrial dismissal of an indictment, or at least a right to have the district court consider a pretrial dismissal. But no one argues that the denial of a pretrial dismissal is itself immediately appealable. Why should the district court’s refusal to consider that dismissal be immediately appealable, particularly when that refusal is due to the defendant’s refusal to submit to the court’s jurisdiction?

To be sure, fugitive-disentitlement orders are not effectively reviewable after a final judgment—fugitive status becomes moot once the defendant surrenders or is captured. But lots of district court decisions are not effectively reviewable after a final judgment. And the defendant has complete control over whether the district court will decide the defendant’s request to dismiss an indictment.

No Pendent Appellate Jurisdiction

One final note. The majority declined to extend pendent appellate jurisdiction to review the merits of the defendant’s motion to dismiss. Pendent appellate jurisdiction, the majority noted, is available when the appealable and pendent issues are inextricably intertwined. And the merits of the defendant’s motion was distinct from her fugitive status. Indeed, application of the collateral-order doctrine required that the fugitive-disentitlement issue be separate from the merits.

Thanks to Tommy Bennett for letting me know about this case.

United States v. Bescond, 2021 WL 3412115 (2d Cir. Aug. 5, 2021), available at CourtListener and Westlaw.