Doctrine on the Run: The Deepening Circuit Split Concerning Application of the Fugitive Disentitlement Doctrine to Foreign Nationals
Doctrine on the Run: The D eepening Circuit Split Concerning Application of the Fugitive Disentitlement Doctrine to Foreign Nationals
Chloe S. Booth 0 1 2 3
0 Chloe S. Booth, Doctrine on the Run: Th e Deepening Circuit Split Concerning Application of the Fugitive Disentitlement Doctrine to Foreign Nationals , 59 B.C.L. Rev. 1153,
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1 Petition for Writ of Certiorari at 7, Darin v. United States, 137 S. Ct. 1223 (2016()No.
16564) [hereinafter Petition].
2 Id. UBS is a global financial services company that is headquartered in Zurich, Switzerland
with offices all around the world. UBS, h/t/twp:ww.ubs.com/global/en/about_ubs/about_us/our
profile.html [https://perma.cc/P9XD-AD7Q]. During the relevant time period of this case, UBS
operated among wholly-owned subsidiaries in Japan and Singapore. Complaint at 5, United States
v. Hayes (Hayes II), 118 F. Supp. 3d 620 (S.D.N.Y. 2015) (No. 12 MAG 3229).
3 See United States v. Hayes, 99 F. Supp. 3d 409, 412 (S.D.N.Y. 2015) (describing the
countries and currencies that Darin dealt with in his position, neither of which included the United
States nor the American dollar). Darin’s primary responsibility at UBS was trading in- short
interest rates in Asia and Switzerland. Id. He was responsible for UBS’s Yen LIBOR submissions
to the British Bankers’ Association (BBA).Id. None of his work involved working directly with
entities in the United States. Id.
indirect, through his work with Thomson Reute4rsI.magine his surprise
when, on December 12, 2012, the United States government filed a criminal
complaint against him.5 He was charged with conspiracy to commit wire
fraud pursuant to 18 U.S.C. §1349 and 18 U.S.C. §1343.6 The complaint
alleged that Darin’s conduct resulted in Thomson Reuters publishing sm- i
leading Yen LIBOR fixings that were favorable to UBS trading position7s.
An arrest warrant was issued but, as a Swiss citizen living in Switzerla,nd
Darin has not been arrested.8
On October 2, 2014, Darin’s attorneys filed a motion to dismiss, citing
a Fifth Amendment violation and inappropriate extraterritorial application
of U.S. law9. Magistrate Judge James Francis IV, sitting on the United
States District Court for the Southern District of New York, found that the
fugitive disentitlement doctrine did not bar the court from hearing Darin’s
motion to dismiss and simultaneously denied the motion to dismis1s0. Judge
Paul Crotty agreed in part and disagreed in part, determining that the fugitive
disentitlement doctrine barred the court from hearing the merits of Darin’s
4 Petition, supra note 1, at 8. The United States contends that Darin’s alleged manipulation of
interest rates favored Tom Haye’s trading positions and resulted in fraudulent trades inside the
United States. Id. Although both individuals were not located in the United States, a counterpart of
Hayes’ was located in Purchase, New YorkI.d. This means the only connection between Darin
and the United States is that his manipulated interest rate affected the ultimate YenL-IBOR
interest rate published by Thomson Reuters, which is published worldwide, including in the United
5 Hayes II, 118 F. Supp. 3d at 623. The complaint listed three counts: conspiracy to commit
wire fraud, wire fraud, and antitrust violations. Complaints,upra note 2, at 1–3. The complaint
names as a co-defendant Tom Hayes, who was charged with all three counts whereas Darrinwas
only charged with conspiracy to commit wire fraudI.d. Hayes was tried and convicted of eight
counts of fraud for his role in manipulating LIBOR rates in an English court in August 2015.
Hayes II, 118 F. Supp. 3d at 623 n. 2.
6 18 U.S.C. §1343 (2012) (explaining conduct that constitutes wire, radio, and television
fraud and accompanying punishment);id. § 1349 (stating that anyone who attempts or conspires
to commit a crime enumerated in this chapter will be subjected to the same penalties as those
listed for the offense, as if the underlying crime had been committed).
7 Complaint, supra note 2, at 21. “The Japanese Yen LIBOR interest rate is the average
interbank interest rate at which a large number of banks on the London money market are prepared to
lend one another unsecured funds denominated in Japanese Yen.”Japanese Yen LIBOR Interest
Rate, GLOBAL RATES, www.global-rates.com/interest-rates/libor/japanese-yen/japanese-yen.aspx
8 Hayes II, 118 F. Supp. 3d at 623.
9 Id. Darin argued that his Fifth Amendment right to due process was violated because there
was an insufficient connection between him and the United States to support charging him in the
United States. Id. He also claimed his Fifth Amendment right to due process was violated because
he did not receive commensurate notice that his alleged conduct was criminal. Id.
10 See United States v. Hayes, 99 F.Supp. 3d 409, 416 (S.D.N.Y. 2015) (declining to
determine Darin’s fugitive status because, even if he was a fugitive, the fugitive disentitlement doctrine
would not be applicable to the facts of the case). After applying the rationales behind the doctrine
to the facts of the case, the judge denied Darin’s motion to dismiss. Id. at 430–26.
motion to dismiss1.1 The United States Court of Appeals for the Second
Circuit granted the United States’ motion to dismiss and denied Darin’s
petition for mandamus relief.12
The fugitive disentitlement doctrine allows a court to deny a party’s
request to make use of the American judicial system when they purposely
evade the jurisdiction to avoid criminal prosecutio1n3 . When a defendant
purposefully removes himself from the court’s jurisdiction, he is signaling
his disrespect for the judicial system and proces1s4. As a result, he should
not be rewarded with benefits that stem from access to the appellateo-pr
cess.15 Rationales supporting the docrtine include difficulty of enforcing a
judgment against a fugitive, the idea that flight acts as a waiver of the right to
appeal, discouragement of prisoner escape, and efficient operation of criminal
appeals, to name a few1.6 Another theory supporting thisdiscretionary
doc11 United States v. Hayes(Hayes II), 118 F. Supp. 3d 620, 623 (S.D.N.Y. 2015) (No. 12
MAG 3229). The district court rejected the magistrate’s determination that Darin was not a
fugitive and that the fugitive disentitlement doctrine should not be applieIdd.. at 629. The district
court instead found that Darin was a fugitive because an arrest warrant was issued against him and
he has actively avoided being arrested by staying in SwitzerlanIdd.. at 626. The court did not
believe that someone who otherwise would be considered a fugitive had they committed the crime
in the United States, should not be labeled a fugitive just because of the impossibility of leaving
the United States. Id. at 625. The court also found that the fugitive disentitlement doctrine applies
because the four factors underpinning the doctrine counsel in favor of disentitlementI.d. at 626–
27. Finally, the district court explained why, if it were to review Darin’s motioonditsmiss, it
would fully adopt the magistrate judge’s order denying the motion. Id. at 627–29.
12 United States v. Hayes, at 1–2, No. 15-2597 (2d Cir. Mar. 15, 2016) [hereinafter Appellate
Order]. The judge explained that the district court’s order was not immediately appealable under
the collateral order doctrine and therefore the court did not have jurisdiction to hear the appeal.Id.
Additionally, the court found that Darin did not meet his burden of demonstrating “exceptional
circumstances” that merit mandamus relief. Id.
13 28 U.S.C. § 2466 (2012). A judicial officer may forbid an individual from using the U.S.
court system in furtherance of a claim if, after the individual has knowledge that a warrant has
been issued for his apprehension, such individual flees the jurisdiction in order to avoid
prosecution. Id. § 2466(a)(1)(A). The individual may be forbidden from using the court system for failing
to enter or reenter the United States in order to submit to its jurisdictionI.d. § 2466(a)(1)(B). An
individual who is in custody in another jurisdiction for illegal conduct in that jurisdiction is not a
fugitive for purposes of this law. Id. § 2466(a)(2).
14 See Patrick J. Glen, The Fugitive Disentitlement Doctrine and Immigration Proceedings, 27
GEO. IMMIGR. L.J. 749, 754–55 (2013) (explaining that the Supreme Cour’ts decision in Allen v.
Georgia, 166 U.S. 138, 141 (1896), rested partially on enforceability grounds but also on the fact
that fleeing after commencing the appeals process demonstrates irreverence for the process and
tarnishes the court’s dignity).
15 See Paige Taylor, The Good, the Bad, the Ugly: A Survey of Selected Fifth Circuit
Immigration Cases, 41 TEX. TECH. L. REV. 989, 1005 (2009) (explaining that the doctrine can be seen
as an incentive device to keep convicted criminals from escaping because noconm-pliance with
jail sentences divests the criminal of access to the appeals process).
16 See Estelle v. Dorough, 420 U.S. 534,537 (1975) (per curiam) (stating that the
disentitelment doctrine supports the sanctity of the appeals courts and promotes efficient operation of the
appellate process). The Court also, for the first time, proposed that discouraging prisoner escape
and supporting escapee self-surrender were valid rationales supporting invocation of the doctrine.
trine is preserving judicial resources by allowing appellate judges to deny a
fugitive’s claim.17 The doctrine should be applied when (1) the defendant is
determined to be a fugitive, and (2) when the four factors underlying the
doctrine counsel disentitlement, considering principles such as mutuality
and aversion to flouting the judicial system, and only then should the court
forgo hearing the appeal.18
Determining fugitive status, however, is not as simple as whether or
not the defendant escaped prison or evaded law enforcemen1t9. There are
two preliminary questions to answer: (1) whether actual flight is necessary
to label someone a fugitive, and (2) whether a foreign defendant’s failure to
surrender by remaining outside the country is sufficient to label them a
fugitive.20 Courts are divided on both of these questions.21 With no legal
obligaId.; Molinaro v. New Jersey, 396 U.S. 365, 366 (1970) (explaining that flight from custody acts as
a defendant’s waiver to claim a right of appeal and can disentitle him from seeking relief); Smith
v. United States, 94 U.S. 97, 97 (1876) (addressing enforceability concerns).
17 In re Grand Jury Subpoenas, 179 F. Supp. 2d 270, 285–86 (S.D.N.Y. 2001).
18 See Empire Blue Cross & Blue Shield v. Finkelstein, 111 F.3d 278, 280 (2d Cir. 1997)
(discussing the four factors that determine whether the fugitive disentitlement doctrine should be
applied to a defendant). Courts will weigh the following factors in deciding whether disentitlement
is warranted: (1) whether a decision on the merits would be enforceable; (2) whether a defendant
is flouting the judicial process; (3) whether a decision on the merits would encourage similarly
situated defendants to act in the same manner; and (4) whether thgeovernment is prejudiced by
the defendant’s continued evasion of authorityI.d.; United States v. Hayes(Hayes II), 118 F.
Supp. 3d 620, 624 (S.D.N.Y. 2015) (No. 12 MAG 3229).
19 See Hayes II, 118 F. Supp. 3d at 624–26 (reviewing various definitions of the word
fugitive). The court explained that the general public’s idea of a fugitive can be described based on a
recent prisoner’s escape from the Clinton Correctional Facility in Dannemora, New YorIkd.. A
fugitive is someone who flees.Fugitive, BLACK’S LAW DICTIONARY (10th ed. 2014). More
precisely, a fugitive is a suspect in a criminal case who evades prosecution, arrest or imprisonment by
leaving the jurisdiction or hiding.Id.; see, e.g., United States v. Bokhari, 757 F.3d 664, 672 (7th
Cir. 2014) (explaining that the term fugitive may be used in subtly different ways depending on
the various legal contexts in which the term is invoked); United States v. Blanco, 861 F.2d 773,
779 (2d Cir. 1988) (stating that a person can be classified as a fugitive if he learns, while outside
of U.S. jurisdiction, that he will be indicted and makes no effort to return to the country); United
States v. Catino, 735 F.2d 718, 722 (2d Cir. 1984) (noting that a defendant does not have to
acutally flee in order to be labeled a fugitive by the court but that “intent to flee” suffices and this
intent can be gleaned when an individual refuses to turn himself over to the authorities once he is
aware that charges have been filed against him).
20 Hayes II, 118 F. Supp. 3d at 624;see also infra notes 105–108 and accompanying text
(describing the different courts’ approaches to answering these two questions).
21 Compare In re Hijazi, 589 F.3d 401, 412–13 (7th Cir. 2009) (declaring foreign national not
to be a fugitive when his only presence in the United States was over twenty years prior and
unrelated to the case at bar), and In re Grand Jury Subpoenas, 179 F. Supp. at 287 (explaining that an
individual who constructively flees the jurisdiction is not a fugitive unless: (1) hweas physically
present in the jurisdiction when he allegedly committed the crime, (2) while he is outside of the
jurisdiction he becomes aware that he is wanted for arrest, and (3) he chooses to remain outside of
the jurisdiction to avoid facing charges),with 28 U.S.C. § 2466(a) (2012) (allowing the fugitive
disentitlement doctrine to be applied in the civil forfeiture context to individuals who, after
leanring they are wanted by the authorities, refuse to enter the United Stateasn)d, United States v.
tion to surrender himself to U.S. jurisdiction, how could a foreign national
who has never been to the United States be considered a fugitive22? In the
event fugitive status is imposed on the defendant, the court must decide
whether application of the doctrine to the case at bar serves the underlying
interests.23 Just because a defendant is deemed a fugitive does not mean that
the doctrine should automatically be invoked.24 Would it make sense to
disentitle a fugitive of his right to appeal under the doctrine if the sanction
would not serve the purposes of the doctrine?25
Part I of this Note provides an overview of the historical development
of the fugitive disentitlement doctrine and its application and limitation2s6.
Part II reviews the procedural history oDfarin v. United Statesand
compares it to the Seventh Circuit’s decision iInn re Hijazi.27 Part III argues
that the Seventh Circuit, in contrast to the Second Circuit, correctly applied
the fugitive disentitlement doctrine inIn re Hijazi and the Supreme Court
erred in denying Darin’s petition for certiorari, thereby not resolving the
current circuit split.28
Hernandez, 2010 WL 2652495, at *5 (S.D.N.Y. June 30, 2010) (stating that the circumstances
surrounding how an individual becomes a fugitive may be irrelevant because the crucial factor to
examine is the individual’s intent to submit to the jurisdiction).
22 See United States v. Hayes, 99 F. Supp. 3d 409, 416 (S.D.N.Y. 2015) 416 (concluding that,
based on the record before him, Darin is a foreign national who has never entered the United
States and has not concealed his location from U.S. authorities but has simply chosen to remain in
his home country of Switzerland). The judge did not reach a decisionon whether Darin is a
fugitive, explaining rather that even if he were considered a fugitive, it would be improper to apply the
fugitive disentitlement doctrine to the facts of the case. Id.
23 See Degen v. United States, 517 U.S. 820, 824–25 (1996), superseded on other grounds by
statute, Civil Forfeiture Reform Act of 2000, Pub. L. No 1061-85, 114 Stat. 202 (codified at 18
U.S.C. §§ 983, 985 and 28 U.S.C. §§ 2466–2467) (reviewing the specific contextual factors of the
case against the backdrop of the rationales underlying the fugitive disentitlement doctrine in
deciding whether to invoke the doctrine).
24 See United States v. Cauwenberghe, 934 F.2d 1048, 1055 (9th Cir. 1991) (acknowledging
that the doctrine grants the court discretionary authority to dismiss the appeal, however there is no
per se requirement that the court must dismiss the appeal in these cases); Angelo M. RussTo,he
Development of Foreign Extradition Takes a Wrong Turn in Light of the Fugitive Disentitlement
Doctrine: Ninth Circuit Vacates the Requirement of Probable Cause for a Provisional Arrest in
Parretti v. United States,49 DEPAUL L. REV. 1041, 1051–52 (2000) d(iscussing various factors
courts should consider, and the weight they should be accorded, in determining whether the
doctrine should be invoked at al)l. The Supreme Court, in Cauwenberghe, took a “totality of the
circumstances” approach in deciding whether to apply the doctrine and determined that prisoner
escape is only one factor of many to consider. Russo, supra, at 1052.
25 See Petition, supra note 1, at 31 (explaining that once a defendant is labeled a fugitive, the
court must look to the rationales behind the doctrine, and not just the fugitive label, in deciding
whether to hear the motion).
26 See infra notes 29–110 and accompanying text.
27 See infra notes 111–163 and accompanying text.
28 See infra notes 164–193 and accompanying text.
I. EVOLUTION AND PURPOSE OF THE FUGITIVE
The power to manage the appeals process belongs to the courts mth-e
selves and is a broad and inherent powe2r9. The fugitive disentitlement
doctrine emerged from this inherent power at the end of the 19th century when it
was applied to prevent fugitives from making unfair use of the judicial ss-y
tem.30 It was developed as a rule of criminal appellate procedure when it was
invoked to dismiss the appeal of a convicted criminal who esacped from jail
during the pendency of his appeal.31 At first, the doctrine was principally
applied in criminal cases involving prison escapees32. Since then, the doctrine
has broadened its application to appeals filed by those not yet arrested or
charged, but who leave the jurisdiction to avoid answering for an alleged
crime, among other instances3.3 Section A of this Part sets out the power of
the federal courts to apply the fugitive disentitlement doctrin34e.Section B
discusses the original formulation of the doctrine and its application tso- e
caped prisoners.35 Section C examines the complications arising from
invoking the doctrine against a foreign defendant living outside the United States.36
A. Appellate Power to Disentitle Fugitives from the Right to Appeal
The United States Constitution does not provide for an absolute right
of appeal.37 The right to appeal was developed over time and has primarily
been established via precedent and codified in rules of appellate ep-roc
dure.38 With no constitutional provision binding the United States Courts of
Appeals to review an appeal, they are free to use their implied powers to
formulate rules that allow for the most efficient operation of their courts.39
The Supreme Court first articulated this principle in 1985 in Thomas v.
Arn.40 The petitioner was convicted of homicide in Ohio state cou4r1t.On
37 Abney v. United States, 431 U.S. 651, 656 (1977) (recognizing that the Constitution does
not provide an absolute right to appeal and detailing how the right to appeal developed)s;ee also
Griffin v. Illinois, 351 U.S. 12, 18 (1956) (stating that the Constitution does not require the states
to provide appellate courts or a right to appeal); McKane v. Durston, 153 U.S. 684, 687 (1894)
(explaining that a state’s statute that did not allow for an appeal does not violate the Second and
Fourth Amendments of the Constitution). Review by an appellate court after final judgment in a
criminal case was not a right at common law, nor now a fundamental element of due process.
McKane, 153 U.S. at 687.See generally U.S. CONST. (lacking any reference to an individual's
right to appeal a court ruling).The Constitution does not mention anything about an individua’ls
right to appeal a court ruling. See generally Alexandra Reimelt, An Unjust Bargain: Plea Bargains
and Waiver of the Right to Appeal,51 B.C. L. REV 871, 904 (2010) (discussing the government’s
ability to strip a defendant of his right to appeal in exchange for a more favorable sentence in a
38 See, e.g., 28 U.S.C. § 1291 (2012) (laying out the jurisdiction of federal appellate courts);
FED. R. APP. P. 3 (explaining the process for filing a valid appeal); James E. Lobsenz,A
Constitutional Right to an Appeal: Guarding Against Unacceptable Risks of Erroneous Conviction8, U.
PUGET SOUND L. REV. 375, 376 (1985) (explaining that almost every state in the United States
recognizes a right to appeal in serious criminal cases either by statute or state court rule).
39 Chambers v. Nasco, 501 U.S. 32, 43 (1991)(quoting United States v. Hudson, 11 U.S.(7
Cranch) 32, 34 (1812) (explaining that the courts’ ability to exercise their implied powers is
necessary in order for them to exercise their given power)s. The rule granting jurisdiction to appellate
courts does not explicitly confer on the courts the authority to establish procedural rules governing
their decisions, but this does not render rules they create inconsistent with the Constitution or federal
statutes. Anthony Michael Altman, The Fugitive Dismissal Rule: Ortega-Rodriguez Takes the Bite
out of Flight, 22 PEPP. L. REV. 1047, 1050 (1995). The courts will engage in rule making by
working within the bounds of the Federal Rules of Civil Procedure in conjunction with their
adjudication of cases. Id.; see Martha B. Stolley, Sword or Shield: Due Process and the Fugitive
Disenittlement Doctrine, 87 J. CRIM. L. & CRIMINOLOGY 751, 752 (1997) (stating the inherent powers of
the federal courts are of immense importance in exercising their duties). Relying oLnink v.
Wabash, Railroad Co., 370 U.S. 626 (1962), Stolley explains that the inherent powers the appeals
courts have allows them to impose rules that demand“silence, respect, and decorum” in order to
maintain the integrity of the court. Stolley, supra, at 752.
40 See 474 U.S. 140, 146 (1985) (stating that there is no dispute that the courts of appeals have,
at a minimum, presiding power to formulate procedural rules for the management of litigation).
41 Id. at 142. Ms. Thomas was convicted of fatally shooting hercommon-law husband during
an argument. Id. The Court of Appeals of Cuyahoga County reversed the conviction, finding that
the exclusion of testimony on Battered Wife Syndrome was errorI.d. at 143. The Ohio Supreme
Court reversed the appeals court, holding that the testimony was irrelevant to
petitio’snesrelfdefense claim and the prejudicial effect of the testimony would outweigh its probative valuIed. .
The petitioner subsequently sought habeas corpus relief in the United States District Court for the
Northern District of Ohio, which assigned the case to a magistrate judIgde.. The magistrate’s
appeal to the United States Court of Appeals for the Sixth Circuit, the court
announced that petitioner had waived her right to appeal by failing to file
timely objections.42 On petition of certiorari to the Supreme Court, the
Court held that, so long as an appellate court’s rule did not clash with the
Constitution or a statute, the court was free to devise its own rules that
allow for the most efficacious operation of judicial proceedings.43
The right to punish a party who fails to follow an appellate rule or who
evinces disrespect in front of the court also derives from the court’s implied
powers.44 The court can impose various penalties, including contempt
sanctions, exclusion of evidence or even denial of the right to a statutorpy- a
peal.45 Because the court’s inherent powers are not subject to checks and
balances, the rules must be narrowly tailored and invoked with restrain46t.
In order for a court-made rule to stand as a valid exercise of the court’s
miplied powers it must meet three requirements: (1) the rule must not
conatrdict the Constitution, (2) the rule must be reasonable in terms of the interest
it wishes to promote, and (3) the court must be vested with the authority to
establish it through adjudication.47
report recommended that the writ be denied, concluding that omission of Battered Wife Syndrome
testimony did not destroy basic fairness at the trial and therefore no sufficient ground for habeas
relief exists. Id. at 144.
42 Id. The petitioner did not file a timely appeal to the judge’s report so the district court judge
dismissed the case. Id. Without reaching the merits of the case, the Sixth Circuit relied on its
holding in United States v. Walters, 638 F.2d 947 (1981), “which established the prospective rule that
failure to file timely objections with the district court waives subsequent review in the court of
43 See id. at 155 (holding that a court of appeals has the authority to proscribe rules
conditioning appeals so long as they do not violate the Federal Magistrates Act or the Constitutiosne)e;
also Altman, supra note 39, at 1049 (discussing the holding inThomas allowing appellate courts
to create rules that best allow them to run their courtrooms).
44 See Stolley, supra note 39, at 752 (explaining that the implied powers provide the courts
with the ability to impose rules or penalties in order to command order in the court); see also infra
note 52 and accompanying text.
45 Stolley, supra note 39, at 752–53 (relying on various cases where these types of puhn-is
ments were upheld for parties who defied the authority of the appellate court);see, e.g., Roadway
Express, Inc. v. Piper, 447 U.S. 752, 7636–4 (holding that sanctions for failure to comply with
discovery orders is a valid penalty to impose based on an individua’ls conduct or in order to deter
others from engaging in similar conduct).
46 Piper, 447 U.S. at 754. Although invocation of inherent powers should be done witeh- r
straint, there exist particular circumstances where federal courts should exercise their inherent
power to assess attorney’s fees against counsel. Id.; see Stolley, supra note 39, at 753 (explaining
that the lack of democratic controls on the rulme-aking procedure renders the cour-tmade rules
particularly powerful and therefore must be exercised carefully).
47 See Thomas v. Arn, 474 U.S. 140, 145–53 (1985) (detailing the Court’s reasoning in
determining whether the Sixth Circui’ts exercise of inherent power to dismiss the appeal was valid).
The Court did not lay these factors out in this manner, but these are the factors they examined in
rendering their decision. See id.
Appellate courts long ago reached consensus that they have the right to
sanction a defendant who files a post-conviction appeal and thereafter escapes
custody by dismissing the appeal, as this practice complies with the above
framework.48 The fugitive disentitlement doctrine, which emerged from this
practice and has subsequently matured, is not inconsistent with the
Constuittion.49 The doctrine does not appear to be in conflict with any federal t-sta
ute.50 The rule is reasonable in achieving the interests, including deterring
escape, encouraging self-surrender, promoting enforceability of rulings and
furthering efficient and dignified operation of appellate courts, the court
wishes to promote.51 Finally, the Federal Rules of Appellate Procedure confer
on the courts broad rule-making power.52 This broad power affords the court
the right to create the doctrine through adjudication in its court5.3
Accordingly, the fugitive disentitlement doctrine and its corollary sanctions on criminal
defendants are well within the court’s rule-making power.54
B. Criminals on the Lam: Dismissal of Post-Conviction Appeals
It is well established that an appeals court has the right to dismiss a
post-conviction appeal of a criminal who subsequently flees fromprison.55
Ensuring that the defendant would be bound to the consequences of a
determinative ruling on the appeal, known as mutuality, was the central issue
in the 1876 case of Smith v. United States.56 The Court posited that once the
convicted party has escaped, he is not inclined to voluntarily surrender
himself to the very authorities he evaded5.7 It would be a waste of judicial
ersources, the Court explained, to take the time to review an appeal and make
a ruling when any order will have no functional effect.58
The Supreme Court relied on this same reasoning in 1887 in deciding
Bonahan v. Nebraska.59 The Court again refused to hear an appeal where
there would be no opportunity for the judgment to be enforced until the
plaintiff reappeared in the jurisdiction and came under control of the lower court.60
In 1897, the Supreme Court proffered a new justification for fugitive
disentitlement in Allen v. Georgia.61 The Court stated that by escaping from
prison, the fugitive has committed yet another criminal offense; to conclude
that this conduct acts as a waiver of his appeal is an extremely light puhn-is
ment.62 Justice Brown explained that the fugitive in effect mocks the court’s
power by stating that he will return if his appeal is heard and there is a chance
56 94 U.S. at 97. In this case, the plaintiff had escaped from jail and therefore was not actually
or constructively under control of the courtI.d. The court announced that it was not inclined to
review and rule on an appeal when its ruling is likely to be ineffective.Id. Mutuality is concerned
with binding the defendant to any judgment made by the couSrte.e id. Mutuality is said to be
lacking when a favorable judgment benefits the defendant and an adverse judgment has no effect
on the defendant. United States v. Hayes(Hayes II), 118 F. Supp. 3d 620, 626 (S.D.N.Y. 2015)
(No. 12 MAG 3229). Under the fugitive disentitlement doctrine, a lack of mutuality counsels in
favor of disentitlement. Id.
57 See Smith v. United States, 94 U.S. 97, 97 (1876) (discussing the Court’s rationale in Smith
in deciding whether to review defendant’s appeal). The likelihood of voluntary surrender is further
reduced when it is doubtful that the fugitive will get a favorable pronouncement from his pending
58 Id. The Court reasoned that if it were toaffirm the plaintiff’s conviction, he would be
unlikely to reappear and submit himself to the ruling.Id. If the court were to reverse his conviction
and order a new trial, the plaintiff may or may not present himself to be bound by the order.Id. As
a result, it seemed pointless to hear and decide a case whose outcome may be unenforceable. Id.
59 125 U.S. at 692 (announcing that, because the plaintiff had escaped, and was not under
control of the lower court by being either in custody or out on bail, his appeal must be set aside
until he is recaptured).
61 166 U.S. 138, 141 (1896) (stating that, because the act of escaping from prison is its own
distinct crime, it is appropriate to treat this conduct as the escapees’waiver of his right to file an
appeal). This case marked the first extension of the doctrinse’rationales by asserting that a
defendant’s flight after commencing the appellate process evidences contempt for the process and
damages the dignity of the judicial system. Glen, supra note 14, at 754–55.
62 Glen, supra note 14, at 754;see Commonwealth v. Andrews, 97 Mass. 543, 544 (1867)
(“So far as the defendant had any right to be heard under the Constitution, he must be deemedo t
have waived it by escaping.”).
for retrial but if the court denies the appeal, he will never submit to its rule6.3
The Court also drew upon its precedent in civil cases to further justify its
decision to deny a fugitive’s appeal, explaining that it was the Court’s common
practice to dismiss a case when no dispute remained or the parties had come
to a settlement agreement.64 The Court saw no reason to limit this custom to
the civil context.65 The doctrine was later expanded to apply to other classes
of fugitives, such as those who did not escape from jail.66
Early applications of the fugitive disentitlement doctrine were
primarily concerned with enforceability issues and disentitlement as an appropriate
sanction.67 As tougher cases presented themselves, the courts voiced other
rationalizations in support of the doctrine’s purpose.68 For example, the
Supreme Court opined that allowing discretionary dismissal of a prisoner’s
pending appeal discourages escape and promotes s-eslufrrender after
escape.69 Some states enacted their own statutes that automaticallydismissed
an appeal once a prisoner escaped and provided that the appeal could only
be reinstated if the prisoner self-surrendered within a fixed period of time.70
In 1975 the Supreme Court referenced these justifications inEstelle v.
Dor63 Allen, 166 U.S. at 141; see Stolley, supra note 39, at 754 (explaining that this phenomenon
permits the fugitive to dictate his terms for surrender and that the court should not reward this
disrespect for their authority).
64 Allen, 166 U.S. at 140. The Court relied onCalifornia v. San Pablo & T.R. Co,. 149 U.S.
308 (1893) (stating that the case must be dismissed because the obligation by the defendant to pay
sums of money to the state terminated when defendant deposited money in a bank for the state,
giving the state everything it could have recovered inan action); Little v. Bowers, 134 U.S. 547
(1890) (holding that reversal or affirmance of certain taxes already paid would have no siig-nif
cance because they are not the taxes in controversy in the case at bar); andDakota Co. v. Glidden,
113 U.S. 222 (1885) (holding that a valid compromise and settlement extinguishes a cause of
65 Allen, 166 U.S. at 140. As long as the lower court has acted within the constitutional laws
of its state and has conformed to procedural practice, the Supreme Court should seldom interfere
with its ruling and pronounce that there had been a violation of due process. Id.
66 See Molinaro v. New Jersey, 396 U.S. 365, 365–66 (1970). In Molinaro, the defendant had
been released from prison on bail and failed to appear in cour.tId. The refusal to appear does not
make the case nonjusticiable but rather the defendant should not be allowed to use the court
system to his benefit when he has expressly disrespected its authority. Id.; Eisler v. United States, 338
U.S. 189, 190 (1949). The petitioner fled from the country after a grant for his petition for a writ
of certiorari. Eisler, 338 U.S. at 190. Relying onSmith and Bonahan, the Court announced that it
would adhere to its precedent and that the petitioner’s case would be removed from the docket. Id.
67 Ortega-Rodriguez v. United States, 507 U.S. 234, 240 (1993) (relying on the Court’s
decisions in Smith, Bonahan, and Eisler to demonstrate these were the court’s original key concerns in
applying the doctrine).
68 See Estelle v. Dorough, 420 U.S. 534, 537 (1975) (per curiam) (announcing that deterring
prisoner escape and encouraging escapee self-surrender also supported the purposes underpinning
the doctrine); see also Glen, supra note 14, at 752 (noting that although the doctrine has evolved
from its primary purpose of ensuring compliance with court decisions, the different rationales that
have allowed for the evolution build on one another).
69 Estelle, 420 U.S. at 537.
70 See, e.g., TEX. CODE CRIM. PROC. ANN. art. 44.09 (West 1966) (repealed 1986).
ough, and upheld, in the face of an equal protections claim, the conust-it
tionality of a statute that mandated automatic dismissal of a prisoner’s
pending appeals at the time of his escape.71 The Court also stated that the statute
promotes the “efficient, dignified operationof the Texas Court of Criminal
Appeals.”72 The concern for efficient operation of the courts constituted a
new principle underlying the doctrine: promotion of fairness in the adrv-e
The Supreme Court has firmly settled that the fugitive dinsteitlement
doctrine permissibly strips the right to a decision on the merits of a pending
appeal from fugitives while also demarcating the bounds of its application
by declining to encompass prior fugitives who later wish to make use of the
appellate process.74 In 1993, in Ortega-Rodriguez v. United States, the
Supreme Court decided whether the same rationales similarly justified a rule
that mandates automatic dismissal of an appeal from a criminal whose flight
and recapture occurred post-sentencing but prior to the filing of an appeal.75
The case signaled a pullback on the previously expanding fugitive disein-t
tlement doctrine.76 The United States Court of Appeals for the Eleventh
Circuit had previously extended the fugitive disentitlement doctrine to a
71 420 U.S. at 541. The Supreme Court found that the statutes’ creation and treatment of two
separate classes (prisoners with different sentences and prisoners returned to prison under different
circumstances) was not violative of the Equal Protection Clause.Id. at 537–39. The Constitution
does not say things that are factually different should be treated legally the same. Id. at 538.
72 Id. at 537. The Court relied onLoyd v. State, 19 Tex. Ct. App. 137, 155 (1885), which
addressed the time period a court should wait for a prisoner to surrender himself in order to rule on
his appeal and coming to the conclusion that the courts should not operate on a prison’esr
73 See Stolley, supra note 39, at 755 (noting the new justification for the fugitive disenteit-l
ment doctrine announced by the Court in Estelle); see also Ortega-Rodriguez v. United States, 507
U.S. 234, 249 (1993) (relying on United States v. Holmes, and acknowledging that when a long
period of fugitivity coincides with a pending appeal, the governmen’ts case may become
improperly prejudiced by the delay in commencement of appellate proceedings). Factors that may
negatively affect the government’s case after undue delay are the fact that witnesses become harder to
locate and memories fade as time passes. Stolley, supra note 39, at 755.
74 Ortega-Rodriguez, 507 U.S. at 239–49. The Court examined the long history and
development of the doctrine, as rationales were added, and where the court declines to extend applicaiton
of the doctrine. See id.; see also supra notes 55–73 and accompanying text; infra notes 75–84 and
75 507 U.S. at 242. The petitioner was convicted of various narcotics chargesI.d. at 237. He
did not appear for sentencing, was sentenceidn absentia and was apprehended eleven months
after the sentencing date. Id. The petitioner’s attorney filed a motion to vacate the sentence and for
resentencing. Id. at 238–39. Only the former was granted andthe petitioner subsequently filed an
appeal to the denied motion for resentencing. Id.
76 Altman, supra note 39, at 1048. The Cour’ts holding halted the expanding application of
the doctrine by allowing defendants who escaped from custody prior to filing an appeal to file an
appeal once they are recaptured or self-surrender. Id.; see also Ortega-Rodriguez, 507 U.S. at 251
(holding that when a defendant’s flight and recapture both happen prior to filing an appeal, there
lacks a sufficient nexus between the defendant’s past fugitive status and the appellate process that
would warrant dismissal via the fugitive disentitlement doctrine).
petitioner who failed to appear for po-sctonviction sentencing but was
ercaptured before filing his appeal7.7 As the Eleventh Circuit offered no
explanation for its decision, the Supreme Court engaged in a thorough
anaylsis to make a proper determination on the relevance of the doctrine to this
particular class of petitioners.78 The Court noted that allowing the court of
appeals to exercise discretion in dismissing an appeal presupposes a nexus
between the petitioner and the appellate process79. When a would-be
peittioner has yet to file an appeal, their absence from the jurisdiction has zero
effect on the appellate process.80 The enforceability concern is non-existent
here because appellate review has not yet been invok8e1d.Similarly, the
conduct of the petitioners inOrtega could not be said to be demonstrate
disrespect for the appeals court because any disrespect evidenced from the
defendant’s escape would be directed at the district court8.2 Finally, the
deterrence theory announced in Estelle is not persuasive for application of the
doctrine in this case because the defendant remains under control of the
dis77 United States v. Holmes, 680 F.2d 1372, 1374 (11th Cir. 1982) (per curiam),abrogated by
Ortega-Rodriguez, 507 U.S. 234 (1993). The petitioner was convicted in the United States District
Court for the Northern District of Georgia for violation of federal narcotics laws in February 1979.
Id. at 1373. The sentencing was set for March 29, 1979, butpetitioner failed to appear and he was
not recaptured until March 6, 1981.Id. The court found the reasoning inMolinaro to be equally
persuasive, whether a convict flees before or after sentencing.Id. at 1374. To conclude otherwise
would “fly in the face of common sense and sound reason.” Id.
78 See Ortega-Rodriguez v. United States,507 U.S. 234, 234(1993). The Court found the
rationales relied upon by the Eleventh Circuit inHolmes did not support a rule dismissing an
appeal by a fugitive who is recaptured prior to invoking the appellate process. Id.
79 See id. at 244 (explaining that rationales for past application of the fugitive disentitlement
doctrine assume a sufficient connection between the defendant and the appeals court such that a
sanction imposed by the appeals court is justifiable).
80 See id. (stating that when a defendan’ts flight from the jurisdiction and subsequent
recapture occur prior to invocation of the appellate process, where the defendan’ts fugitive status never
coincides with his appeal, the justification for allowing discretionary appellate dismissal becomes
attenuated); United States v. Anagnos, 853 F.2d 1, 2 (1st Cir. 1988) (declining to apply the hdo-l
ing in Holmes because the former fugitive’s misbehavior occurred when he was under the
authority of the district court and therefore the consequences should be decided by the district court and
not the appellate court); cf. United States v. London, 723 F.2d 1538, 1539 (11th Cir. 1984) (stating
that a defendant who escapes during his trial but is recaptured after sentencing waives his right to
appeal the conviction). Even though the period of fugitivity did not occur during the pendency of
the appeal and thus did not delay those proceedings, a defendant who voluntarily leaves the
jursidiction during trial creates a myriad of problems and thus disentitlement is an appropriate
sanction. See London, 723 F.2d at 1539.
81 Cf. United States v. Gordon, 538 F.2d 914, 915 (dismissing petition’esr pending appeal,
post-escape, explaining that a convicted party is unlikely to reappear if an adverse judgment is
entered against him).
82 See Ortega-Rodriguez, 507 U.S. at 246. The derisory conduct was aimed at the district
court and by the rationales ofMolinaro and Ali v. Sims, 788 F.2d 954 (3d Cir. 1986), that is the
appropriate court to impose sanctions. Id.
trict court and has not yet created a nexus with the appellate process8.3 As a
result, the Court held that the fugitive disentitlement doctrine cannot be
xepanded to deny the right of appeal to defendants who escaped and
wereercaptured prior to filing an appeal.84
C. Application of the Doctrine to International Parties
The application of the fugitive disentitlement doctrine is aptly undr-e
stood and applied within U.S.boundaries.85 Alleged fugitives, however, do
not always stay in the United States or they may never have been in the
United States.86 At this juncture, challenges to jurisdiction often ar8i7se.
Compounding the challenge of jurisdiction, defendants who live in
countries that do not have an extradition treaty with the United States have no
legal obligation to travel to the United States and submit themselves to its
International law recognizes the significance of prescribing laws that
regulate individual conduct that occurs outside of a country if that conduct
83 See id.; Katz v. United States, 920 F.2d 610, 613 (9th Cir. 1990)a,brogated by Lozada v.
Deeds, 964 F.2d 956 (9th Cir. 1992) (stating that the disentitlement doctrineis not a deterrent for
escape when the defendant is still under the authority of the district courctf).; United States v.
Holmes, 680 F.2d 1372, 1374 (11th Cir. 1982) (per curiam). Punishing an escapee through
appellate dismissal “introduces an element of arbitrariness and irrationatyli.” Ortega-Rodriguez, 507
U.S at 248 (citing Estelle v. Dorough, 420 U.S. 534,544–45 (1975) (Stewart, J., dissenting)). The
district court is adequately equipped to impose a punishment that efficaciously supports escape
deterrence. Id. at 247–48.
84 Ortega-Rodriguez v. United States, 507 U.S. 234, 251 (1993) (noting that “the defendant’s
former fugitive status may well lack the kind of connection to the appellate process that would
justify an appellate sanction of dismissa”l and that a district court is the correct authority
tomipose a sanction when fugitivity occurs under its authority).
85 See id. at 239–40 (explaining that the doctrine is well accepted among the courts).
86 See Petition, supra note 1, at 7. Roger Darin isa Swiss citizen living in Switzerland who
has never visited the United States. Id.
87 See Graham C. Lilly, Jurisdiction Over Domestic and Alien Defendants, 69 VA. L. REV. 85,
116 (1983) (stating that the rapid expansion of international business has increased the number of
claims in U.S. courts against foreigners and that exercising in personam jurisdiction over these
defendants raises special problems). See generally Austen L. Parrish, Sovereignty, Not Due
Process: Personal Jurisdiction Over Nonresident Alien Defenda,nt4s1 WAKE FOREST L. REV. 1
(2006) (comparing the different treatments of the personal jurisdiction requirement for domestic
and foreign defendants).
88 In re Hijazi, 589 F.3d 401, 407 (7th Cir. 2009). The court remarked that Hijazi was under
no legal obligation to travel to the United States and as long as he did not voluntarily enter the
country, he could not be forced to appear before the tribunal in the Central District of Illinois for
arraignment. Id. The United States does not have an extradition agreement with Kuwait and as a
result the Kuwaiti government is free to determine what it will do with HiSjeaezi.generally
Countries with No Extradition Treaty wit,h NBUC.S. (July 31, 2015, 1:0P0M),
[https://perma.cc/Z6HV-KV2X] (listing Kuwait as a country that does not have an extradition
treaty with the United States).
is likely to have significant effects within the prescribing country.89 In order
to maintain favorable and peaceable international relations, U.S. courts will
interpret the extraterritorial application of facially ambiguous statutes in a
manner least likely to impinge upon another country’s sovereignty90. In so
doing, “the courts have created a rebuttable presumption that federal
statutes regulate only domestic conduct.”91
Seeing as federal statutes only regulate domestic conduct, foreign
edfendants often file a motion to dismiss in addition to jurisdictional
challenges.92 Courts have discretion to hear or not hear a motion to dismiss, similar
to their power to forgo hearing appeals, and contextual factors of a case will
influence their decision.93 If, for example, the court determines that the
defendant is a fugitive, the underlying facts of the case may demand an
appil89 Amie Cafarelli, Comment, Transnational Criminal Law—Non-Fugitive Foreign Defendant
Entitled to Ruling on Motion to Dismiss Indictment for Lack of Jurisdiction Without Surrender
ing—In re Hijazi, 589 F.3d 401 (7th Cir. 20093)4, SUFFOLK TRANSNAT’L L. REV. 255, 257
(2011); see RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW §§ 422, 423 (AM. LAW INST.
1987) (listing restrictions on application of laws based on jurisdiction). International law curbs a
country’s authority to control conduct that takes place outside the counstryc’onfines. See
RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 402(1)(c).
90 EEOC v. Arabian Oil Co., 499 U.S. 244, 248 (1991). The Court noted that, absent clear
congressional intent to the contrary, it is a longstanding principal that American legislation is
meant only to apply within the United States.Id. The Court assumes Congress passes legislation
following this canon of statutory interpretationI.d. This principle serves a compelling interest,
which is to avoid conflict between the laws of the Unites States and the laws of foreign nations,
which could lead to international tumult. Id.
91 Cafarelli, supra note 89, at 257 n.17. This presumption is only rebuttabluepon a finding
that Congress explicitly expressed an intent that the statute be applicable outside the United States.
Id. The Supreme Court stated inMicrosoft Corp. v. AT&T Corp., 550 U.S. 437, 444 (2007,)that
the controlling presumption on application of U.S. law is that it governs domestic conduct. See id.
92 See Hijazi, 589 F.3d at 405 (explaining that Hijazi filed a motion to dismiss after his initial
indictment arguing that the statutes he is charged with violating cannot apply t“othe conduct of
foreign nationals outside the boundaries of the United States.”); Petition,supra note 1, at 33
(stating that Darin filed a motion to dismiss on October 2, 2014, based on an alleged insufficient nexus
between himself and the United States, which is requireudnder the Due Process Clause); Ugo
Mattei & Jeffrey Lena,U.S. Jurisdiction Over Conflicts Arising Outside of the United States:
Some Hegemonic Implications, 24 HASTINGS INT’L & COMP. L. REV. 381, 388 (2001) (explaining
that defendants consistently file motions to dismiss in these matters [Holocaust claims] asserting
that American courts lack jurisdiction to hear the claim or should decline to exercise jurisdiction).
93 See United States v. Sharpe, 470 U.S. 675, 681 (1985) (stating that the invocation of the
fugitive disentitlement doctrine is based on equitable considerations);Eisler v. United States, 338
U.S. 189, 194 (1949) (Murphy, J., dissenting) (stating that consideration of the interests at issue
must be given when exercising discretion in deciding whether to apply the fugitive disentitlement
doctrine); United States v. Cauwenberghe, 934 F.2d 1048, 1055 (9th Cir. 1991)(weighing the fact
that petitioner left the jurisdiction without obtaining necessary permission with the fact that he
does not appear to be“flouting the judicial process” and is not attempting to gain an advantage
over the court in deciding whether to apply the fugitive disentitlement doctrine); Hussein v. I.N.S.,
817 F.2d 63, 63 (9th Cir. 1986) (Norris, J., concurring()explaining that the court has exercised
discretionary authority in denying an appeal and that in cases of prisoner escape from federal
custody there is no per se requirement of dismissal).
cation of the fugitive disentitlement doctrine.94 This means the court is
likely justified in refusing to issue a ruling on the defendant’s motion to dismiss
until they surrender themselves to the jurisdiction, despite no legal
oblaigtion to do so.95 This forces the defendant into a catch-22.96
The fugitive disentitlement doctrine ofers foreign defendants two
undesirable options.97 If the defendant chooses not to travel to the United
States, he will not be able to maintain any defenses against the charge(s9)8.
It is very likely that INTERPOL will set up a “red notice” so that if the
edfendant leaves his home country, he can be provisionally arrested,
effectively confining the defendant to his home countr9y9. In addition, the charges
94 Compare Molinaro v. New Jersey, 396 U.S. 365, 366 (1970) (stating that an individual who
escapes from constraints placed on him by the criminal justice system is unequivocally a fugitive
and thus should be barred from asking the court to review hiscase), with Degen v. United States,
517 U.S. 820, 829 (1996), superseded on other grounds by statute, Civil Forfeiture Reform Act of
2000, Pub. L. No 106-185, 114 Stat. 202 (codified at 18 U.S.C. §§983, 985 (2012) and 28 U.S.C.
§§ 2466–2467) (concluding that the doctrine cannot be used to disentitle an individual in a civil
forfeiture case under the auspices of him failing to appear in the United States to confront a
different set of charges).
95 Petition, supra note 1, at 33. This isthe petitioner’s main concern. Id. at 34. If all foreign
defendants are automatically deemed fugitives and the courts are permitted to apply the disie-nt
tlement doctrine to all fugitives, regardless of whether doing so will serve the underlying
purposes, there will be no checkon the government’s decision on how far to extend application of U.S.
law internationally. Id.
96 See id. at 34 (detailing the factors the foreign defendant must consider in deciding whether
to appear in the United States or not). What this amounts to is the following: The U.S. government
can charge any foreign citizen for any foreign conduct aimed at the United States, so long as it
violates a U.S. statute. Id. The constitutionality of the charge will remain safe from any scrutiny
until the defendant willingly travels to the United States and submits to its jurisdictionI.d. at 33–
34. Most defendants in this predicament are unlikely to travel to the United States, because a basis
for their claim is that it would be“fundamentally unfair to force them to appear in this country”.
97 See Robert E. Connolly & Masayuki Atsumi, Defending the Foreign “Fugitive” Against
the Fugitive Disentitlement Doctrine (Part 1), ANTITRUSTCONNECT BLOG (Mar. 21, 2017), www.
antitrustconnect.com/2017/03/21/defending-the-foreign-fugitive-against-the-fugitive-disentitlementdoctrine [https://perma.cc/8X4R-TP5R] (detailing the consequences of either fighting the case
from abroad or appearing in the United States). The foreign defendant faces unique consequences
that a domestic defendant does not. Id.
98 Kaitlyn Golden, The “Fugitive Disentitlement” Doctrine Warrants a Close Look by the
Untied States Supreme Cou, rtLEXOLOGY (Nov. 5, 2014), www.lexology.com/library/detail.aspx?g
=03f2a359-0cde-4af5-a2ea-70a3dcc2fbab [http://perma.cc/7JK9-NDXT] (discussing a recent case
where the district court refused to allow the defendant to put on a defense while remaining in his
home country thereby forcing the defendant to remain in an insecuresituation for the foreseeable
future). United States District Judge James Selna of the Central District of California refused to
hear defenses of Han Yong Kim, a South Korean citizen living and working in Seoul, who had
been charged with foreign bribery under the FCPA.Id. Han Yong Kim maintains that he has not
fled from the United States but has simply made the decision not to uproot his life to appear in the
United States to face charges he does not believe are accurate. Id.
99 Golden, supra note 98 (explaining that issuance of an INTERPOL Red Notice essentially
imposes an international travel ban on the flagged individual); see Red Notices, INTERPOL, https://
www.interpol.int/INTERPOL-expertise/Notices/Red-Notices [http/:/perma.cc/3NRB-LUTF]. “A
and pending indictment will continue to follow the defendant, likely
affecting his ability to get work and his personal reputation.100
If the defendant chooses to travel to the United States and is
subsequently arrested, there is a strong likelihood that he would be denied bail
because he poses a legitimate flight ri1s0k1. In the of-fchance the court
grants the defendant bail, he may be required to remain in the United States
until resolution of the case, taking him away from friends and family and
potentially forcing him to give up his job back home.102 The defendant must
proceed to trial unless a plea bargain is arrange1d03. In the case of a plea
bargain or conviction, the defendant would be subject to serving a prison
sentence in the United States.104
District Courts and Appellate Courts are divided on the application of
the fugitive disentitlement doctrine to n-oUn.S. citizens.105 The United
States Court of Appeals for the Seventh Circuit and the United States sD-i
trict Court for the Northern District of Georgia have held that a n-Uon.S.
citizen is not a fugitive and the doctrine is not applicable unless the
individRed Notice is a request to locate and provisionally arrest an individual pending extradition. It is
issued by the General Secretariat at the request of a member country or an international tribunal
based on a valid arrest warrant.” NITERPOL, supra. Once the red notice has undergone a compi-l
ance check, it is published and it alerts police around the world that this individual is wanted for
prosecution by a member country. Id. The Red Notice is particularly potent because it grants “high
international visibility to cases” and by virtue of being logged into the Red Notice system, cri
minals/suspects are “flagged to border officials,” making international travel nearly impossible. Id.
100 Golden, supra note 98; Rebecca Shaffer, INTERPOL Red Notices: Towards Due Process and
Human Rights Protection,GEO. J. INT’L AFF. (Dec. 9 2013), https://www.georgetownjournalof
internationalaffairs.org/online-edition/interpol-red-notices-towards-due-process-and-human-rightsprotection-by-rebecca-shaeffer?rq=Interpol [https://perma.cc4/4S9-NDJY] (explaining that anN-I
TERPOL red notice, even when it does not result in an arrest, creates immigration and employment
issues and is likely to affect the individual’s reputation and financial interests). Frequently,
INTREPOL notices are not thoroughly vetted for legitimacy before they go live, amounting to significant
punishment without a trial on the merits.See Shafer, supra; Ethan E. Litwin, et al.,The Third Way:
The Constitutional Imperative of Allowing Foreign Nationals to Seek to Dismiss Indictments Prior to
Arraignment, CONCURRENCES REV., no. 2, 2016, at 3. https://www.concurrences.com/en/review/
101 Golden, supra note 98. If the defendant is denied bail, he will be held in a prison cell and
will be forced to defend himself from there. Id.
102 Id. Because cases of this nature are not quickly resolved, the defendant will likely have to
remain in the United States for a number of years which will likely strain their personal and op-r
fessional interests back home. Id.
103 See Connolly supra note 97 (detailing the series of events that happens once the defendant
sets foot in the United States). Preparing for trial is often expensive and can take yearsI.d. Many
defendants cannot afford to remain in the United States for the prteri-al period so often agree to
plead guilty under a plea agreement. Id.
104 Golden, supra note 98.
105 See In re Han Yong Kim, 571 Fed. App’x 556, 557 (9th Cir. 2014) (noting the existence of
a circuit split on the vital question of whether fugitive disentitlement can be decided based on
constructive flight of a defendant); infra notes 106–108 and accompanying text.
ual actually fled the United States in order to avoid prosecuti1o0n6.Other
courts, including the United States Court of Appeals for the Sixth and
Eleventh Circuits and the United States District Court for the Southern Dtirsict
of Texas accept the “constructive flight” theory announced in United States.
v. Catino.107 This theory imposes fugitive status on a defendant who has not
actually fled the jurisdiction but whose “intent to flee from prosecution may
be inferred from a failure to surrender to authorities once he learns that
charges against him are pending.”108 The lack of uniformity in application of the
fugitive disentitlement doctrine to n-oUn.S. citizen defendants raisesm-i
portant issues of fairness for both the defendant and the U.S. government.109
Given that application of the doctrine has significant realilf-e consequences
for individual defendants and for relations between the United States and
other nations, a uniform application must be devised and implemented.110
II. SECOND CIRCUIT’S APPLICATION OF THE FUGITIVE DISENTITLEMENT
DOCTRINE IN UNITED STATES V. DARIN SERVES NONE OF THE
UNDERLYING RATIONALES FOR THE DOCTRINE
After being charged with violating 18 U.S.C. §§ 1343 and 1349,
federal law that makes it illegal to trnasmit information relating to a schemeto
defraud, Darin filed a motion to dismis1s1.1 The case made its way to the
United States Court of Appeals for the Second Circuit, which upheld the
106 See In re Hijazi, 589 F.3d 401, 409–10 (7th Cir. 2009) (concluding that a Lebanese citizen
residing in Kuwait should be allowed to maintain a defense without traveling to the United States
because invoking the doctrine would not serve any of its purposes); United States v. Pub. Wea-r
housing Co., 2011 WL 1126333, *3 (N.D. GaM.ar. 28, 2011) (allowing a Kuwaiti company to
dispute service of a criminal complaint without having to travel to the United States, which would
otherwise vitiate the service rules).
107 In re Prevot, 59 F.3d 556, 557 (6th Cir. 1995); Schuster v. United States, 765 F.2d 1047,
1050–51 (11th Cir. 1985); United States v. Oliveri, 190 F. Supp. 2d 933, 936 (S.D. Tex. 2001).
108 United States v. Catino, 735 F.2d 718, 724(2d Cir. 1984). The court announced that the
doctrine must apply to those who actually flee once they are on notice that charges have been filed
against them as well as to those individuals who are outside of the United States who know of the
charges but refuse to submit to U.S. jurisdiction. Id.
109 See Golden, supra note 98 (discussing the various issues of fairness that pertain to both
sides of the controversy). The author discusses whether it is fair to call someone a fugitive if they
were never in the United States or had left the country long before any charges were filedI.d. By
making use of the constructive flight theory, which is a legal fiction, do courts lose legitimacy by
using that to secure a beneficial outcome for the government although there is no practical basis in
fact for that outcome? Id. Is it fair to force the court to rule on a motion when an adverse ruling
will not truly bind the party affected by the decision?Id. The way these questions are decided end
up having very real-life consequences for both the foreign defendant and the U.S. government. Id.
110 United States v. Hayes(Hayes II), 118 F. Supp. 3d 620, 622 (S.D.N.Y. 2015) (No. 12
MAG 3229). The motion stated that the complaint failed to establish a competent nexus between
Darin and the United States in compliance with Due Process under the Fifth Amendment. Id.
111 Memorandum of Law in Support of Defendant Roger Darin’s Motion to Dismiss the
Criminal Complaint, Hayes II, 118 F. Supp. 3d 620 [hereinafter Defendant’s Memorandum].
district court’s decision finding Darin to be a fugitive and refusing to review
the merits of his motion to dismiss.112 This decision stands in stark contrast
to the 2009 decision of the United States Court of Appeals for the Seventh
Circuit in In re Hijzai.113 The Seventh Circuit’s analysis of the doctrine and
final holding are proper considering the purposes behind the fugitive
disentitlement doctrine, and the Supreme Court was incorrect in denying
cerotirari to Darin1.14 Section A of this Part reviews the procedural history of
United States v. Darin, predating the filing of the petition for certiorari with
the United States Supreme Court.115 Section B sets out the facts and
procedure of In re Hijazi, highlighting the conspicuous similarity of facts with
Darin.116 Section C explains why the Seventh Circuit, rather than the Sc-e
ond Circuit, appropriately employs the doctrine.117
A. Procedural Posture of United States v. Darin
In support of his motion to dismiss, Darin relied on both procedural
and substantive arguments.118 The United States opposed the motion,
reyling on the fugitive deisntitlement doctrine.119 A magistrate judge for the
United States District for the Southern District of New York rejected the
United States’ insistence that the fugitive disentitlement doctrine precluded
112 Petition, supra note 1, at 9–13. The magistrate judge did not find that Darin was a fugitive
for purposes of invoking the fugitive disentitlement doctrine but deniedthe motion to dismiss. Id.
at 10. The district court found that Darin was a fugitive for purposes of the doctrine, finding that
all the purposes underlying the doctrine were present and thus supported disentitlement.Id. at 12.
The court also explained why it would deny the motion to dismiss, if it were to reach the merits.
Id. The Second Circuit dismissed Darins’ appeal and denied mandamus relief and subsequently
denied panel and en banc reconsideration. Id. at 13.
113 Compare In re Hijazi, 589 F.3d 401, 414 (7th Cir. 2009) (finding that Hijazi risks a serious
enough threat of prosecution in the United States if he loses his challenge to the indictment suif-f
cient to satisfy any concerns of mutuality and that disentitlement i“stoo blunt an instrument” to
punish a defendant for his absence so mandamus relief must be grantedw),ith Appellate Order,
supra note 12, at 2(holding that Darin has not proven extraordinary circumstances that warrant
114 See infra notes 118–163 and accompanying text.
115 See infra notes 118–130 and accompanying text.
116 See infra notes 131–144 and accompanying text.
117 See infra notes 145–163 and accompanying text.
118 United States v. Hayes, 99 F.Supp. 3d 409, 412 (S.D.N.Y. 2015). Darin maintained that
the complaint violated his Fifth Amendment Due Process rights because as “a foreign national
[charged] with conspiring to manipulate a foreign financial benchmark, for a foreign currency,
while working for a foreign bank, in a foreign country” a sufficient nexus did not exist between
himself and the United States to support prosecution in the count.ryId. (relying on Defendant’s
Memorandum, supra note 111 at 1–2). He also argued that his prosecution under the
circumstances contravened the presumption against extraterritorial application of U.S. law. Id.
119 Id. at 414–15. The United States contended that Darin wasa fugitive because he did not
surrender himself in accordance with the arrest warrant.Id. at 417. The government also claimed
that the four factors supporting application of the doctrine favored disentitlement in this caseI.d.
the court from reviewing the merits of Darin’s motioton dismiss.120 The
judge found that Darin was not a fugitive and even if he were, the rationales
supporting application of the doctrine would not be applicable in
case.121 The district court judge concurrently reviewed the merits and ui-lt
mately denied the motion to dismiss, finding that a sufficient nexus existed
between Darin and the United States for purposes of due process.122
Subsequently, the United States District Court for the Southern District
of New York determined that Darin was a fugitive and thathe factors
buttressing use of the doctrine were present in this ca1s23e.The court
determined that (1) a decision on Darin’s motion will not be enforceable against
him as long as he remains in Switzerland, (2) that he is flouting the judicial
process by remaining in Switzerland, (3) that similarly situated defendants
would be encouraged to remain outside the United States, and (4) that his
continued absence from the United States prejudices the governm12e4nt.
Additionally, the court noted that it would affirmthe magistrate judge’s
denial of the motion to dismiss if it had, in the alternative, found that Darin
120 Id. at 414–18 (detailing the magistrate judge’s reasoning for determining that Darin is not
a fugitive and thus the fugitive disentitlement doctrine should not be applied). The magistrate
judge relied on cases that limit the definition o“ffugitive” to individuals who are present in the
requisite jurisdiction at the time of the alleged offense.Id. at 415–16. He expressed apprehension
that Darin was a fugitive under this definition because nothing in the record indicated that he had
ever been to the United States or was attempting to conceal his location from U.S. authorities. Id.
121 Id. at 416–18. The magistrate judge found that a decision to endorse the complaint and
maintain the arrest warrant wasenforceable against Darin by virtue of the limitations they place
on his ability to travel, employment prospects and personal interests.See id. at 416–17. The judge
also found unpersuasive the governmen’st argument that Darin flouted the judicial process by
refusing to appear in court because the refusal to appear in cour“tis the sine qua non of fugitive
status.” Id. at 417. As a result, he found the government had not explained what actionsconstitute
flouting of the judicial process and that absent any facts indicating this disrespect, the court could
not conclude that Darin is culpable for doing so.Id. The judge also found the government’s
argument that ruling on Darins’ motion to dismiss would encourage similarly situated defendants to
flee the jurisdiction equally unpersuasive stating that again, the government put forward no facts
to suggest that other defendants or potential defendants in LIBOR cases would be inspired by
Darin’s conduct in the future. Id. Finally, the judge found that no prejudice would befall the
government if the court ruled on the motion to dismiss. Id. 417–18.
122 United States v. Hayes (Hayes II), 118 F. Supp. 3d 620, 628–29 (S.D.N.Y. 2015) (No. 12
MAG 3229) (describing why a sufficient nexus exists between Darin and the United States, allowing
him to be rightfully prosecuted in the United States). Judge Crotty explained that at this stage, a
nexus inquiry is not necessary to determine whether Due Process hasbeen provided but merely requires
a review of “fundamental fairness of the criminal complaint.”Id. He also held that Darin’s argument
that the allegations connecting him to the United States must be reviewed outside the purview of the
allegations against his alleged co-conspirator, Hayes, was groundless. Id. at 629.
123 Hayes II, 118 F. Supp. 3d at 624–27. The court applied the constructive flight definition to
the term fugitive, explaining that the court should not be“bound by the semantics that limit
fugitive status to fleeing or failing to return”when the defendant is a foreign national living abroad
and whose alleged criminal conduct took place abroad. Id. at 626.
124 Id. at 626–27.
was not a fugitive1.25 Darin filed a timely appeal to the Second Circuit in
conjunction with a petition for mandamus relief.126 The Second Circuit
dismissed the appeal and denied mandamus relief.127 Subsequently, the Second
Circuit denied both panel and en banc reconsideration1.28 In October 2016,
Darin filed a petition for a writ of certiorari to the United States Supreme
Court.129 On March 6, 2017, the Supreme Court denied the petition.130
B. In re Hijazi: A Strikingly Similar Case with an Opposite Outcome
Ali Hijazi is a Lebanese citizen residing in Kuwait who was indicted in
2005 on fraud-related charges in the United States District Court for the
Central District of Illinois.131 The record indicates that Hijazi had only been
125 Id. at 628–29. The court held that a nexus inquiry was not necessary at this stage and that
at this time, Fifth Amendment protections merely required“fundamental fairness of the criminal
complaint.” Id. at 628 (relying on United States v. Al Kassar, 660 F.3d 108, 118(2d Cir. 2011)).
The complaint alleged that Darin conspired to manipulate LIBOR interest rates using United
States wires, therefore prosecution in the United States would not be fundamentally unfairI.d. at
628–29. Even under a sufficient nexus test, the acts of his alleged c-oconspirator can be imparted
on Darin, under general conspiracy principles, which would then satisfy the Fifth Amendment
nexus requirement. Id. at 629. The reality is that today many crimes against the United States and
American citizens happen outside of the country and the definition of fugitive should take into
consideration the realities that go along with globalization. Id. The court also held that a ruling on
the merits of Darin’s motion lacked mutuality, that Darins’ absence in the jurisdiction was
sufficient to conclude that he was flouting the judicial process, that ruling on the motion would
encourage other similarly situated defendants to evade an arrest warrant, by remaining in their
country while invoking protections of the Fifth Amendment and that the government would be
prejudiced by Darin’s refusal to submit to the jurisdiction. Id. at 8–10.
126 Petition, supra note 1, at 12. The United States filed a motion to have the appeal dismissed
for lack of appellate jurisdiction, citing the collateral order doctrine. Id. Darin opposed the motion,
saying the order was immediately appealable under the doctrine and conjointly filed his petition
for mandamus. Id. at 12–13. The collateral order doctrine allows appellate courts to hear“appeals
from interlocutory rulings . . . so long as those rulings conclusively decide an issue separate from
the merits of the case and would be effectively unreviewable after final judgm”enCto.llateral
Order Doctrine, LEGAL INFO. INST., https://www.law.cornell.edu/wex/collateral_order_doctrine
127 Appellate Order, supra note 12, at 2.
128 United States v. Hayes at 1, No. 15-2597 (2d Cir. June 28, 2016).
129 Petition, supra note 1, at 35.
130 Proceedings and Orders in Darin v. United States, SCOTUSBLOG, www.scotusblog.com/
131 In re Hijazi, 589 F.3d 401, 403(7th Cir. 2009). In 2001, the U.S. Army contracted with
Kellogg Brown & Root (KBR) to provide goods and services to military locations worldwide,
including in Kuwait. Id. at 404. KBR was in charge of soliciting bids for military services,
including those needed at the Kuwaiti airportI.d. Jeff Mazon, the procurement manager stationed in
Kuwait, was responsible for hiring subcontractors to perform under KBR’s contract. Id. Hijazi, on
behalf of his company, was the winning bidder for the contract.Id. After only two bidders replied,
one being Hijazi on behalf of his company, Mazon increased prices mtohraen three-fold and
awarded the contract to Hijazi’s company, LaNouvelle General Trading & Contracting Co. Id. The
government contended that Mazon did this with the understanding that Hijazi would “reward” him
for his efforts and a subcontract was executed in KuwaIidt.. Mazon sent emails regarding the
to the United States once, for a brief visit on an unrelated purpose in
1993.132 The United States did not (and currently does not) have an
extradition treaty with Kuwait and the Kuwaiti governmetninformed the United
States that it had no intention of voluntarily turning over Hijazi to American
authorities.133 After the first indictment, Hijazi filed a motion to dismiss,
citing inappropriate extraterritorial application of U.S. law1.34 A magistrate
judge denied the motion to dismiss, concluding that Hijazi was a fugitive
for purposes of the fugitive disentitlement doctrine and thus was not entitled
to have his motion considered.135 The district court, on de novo review, was
not as convinced of Hijazi’s ufgitive status nor that the doctrine barred the
court from hearing his motion.136 The court decided not to enter a judgment
on Hijazi’s motion to dismiss until he was arraigned.137 Hijazi subsequently
filed a second motion to dismiss, which was also held in abeyance, and in
August 2008 he filed a writ of mandamus in the Seventh Circuit.138
Notwithstanding that both defendants were foreign nationals whose
alleged conduct occurred outside the United States and who were not
otherwise subject to U.S. jurisdiction, the two circuits reached opposite
conculsions regarding the respective petitioners’ fugitive status under the fugitive
disentitlement doctrine.139 The Seventh Circuit in Hijazi declined to impose
subcontract managers (who were located in the United States) betweeMn arch to August 2003,
and LaNouvelle submitted allegedly inflated invoices to KBR, whopaid them and then billed the
United States for remibursement. Id. The U.S. Army complied with the reimbursements using
checks and wire transfers.Id. In September 2003, Hijazi paid Mazon $1 million and signed a
promissory note, in order to mask the “reward” payment as a loan. Id. Hijazi then sent an email to
Mazon, whose email account was based in the United States, stating the entire sum was his money
alone. Id. Mazon was in Greece at the time he opened the email but when he returned to the
Untied States he unsuccessfully attempted to open a bank account in order to deposit the $1 million.
Id. Hijazi emailed Mazon again, to an allegedly U.S. based email account, with instructions on
how to successfully deposit the money. Id. Hijazi sent a third email to Mazon cautioning him to be
conscientious of what he said to“ex-friends in Kuwait” and the government alleged that Mazon
was back in the United States when he received this third email.Id. Both Mazon and Hijazi were
indicted in the Central District of Illinois.Id. All of the alleged criminal conduct occurred in
Kuwait and not the United States. Id.
132 Id. at 412.
133 Id. at 403.
134 Id. at 405.
135 Id. The judge cited to the doctrine announced inMolinaro v. New Jersey and expressed
primary concern over the issue of mutuality. 396 U.S. 365, 366 (1970); Hijazi, 589 F.3d at 405.
136 Hijazi, 589 F.3d at 406. The court noted that“Hijazi has never been convicted of a crime,
Hijazi has never been physically present within the jurisdiction of this Court, and he has submitted
to Kuwaiti authorities.” Id. Yet the court considered the same mutuality concern announced by the
magistrate judge. Id.
137 Id. The court noted that Hijazi would be entitled to a ruling on the merits of his motion if
and when he decided to appear in the jurisdiction. Id.
139 Appellate Order, supra note 12, at 1–2;In re Hijazi, 589 F.3d 401, 411(7th Cir. 2009).
The Seventh Circuit affirmed the district cour’ts finding that the fugitive disentitlement doctrine
fugitive status and thus had no need to apply the fugitive disentitlement
doctrine.140 Relying on the fact that Hijazi did not actually flee the jurisdiction,
the court abstained from entertaining the “constructive flight” definition of
“flee” and found that mutuality was not a concern1.41 In contrast, the Second
Circuit in Darin found mutuality to be of concern, that Darin was flouting the
judicial process and that ruling on Darin’s motion would embolden similar
defendants to remain outside of the United States.142 Differing interpretations
of the mutuality concern appear tobe driving the factor dividing the two
cricuits.143 When the circuit courts issue decisions in twocases that are so
factually similar, such as Hijazi and Darin, the Supreme Court should resolve
the conflict and establish a single standard, thereby promoting predictability
of outcomes in future cases.144
did not apply to Hijazi because he is not a fugitive for purposes of invoking the doctrinHe.ijazi,
589 F.3d at 411. The court also found that mutuality was not lacking, another reason to disfavor
invocation of the doctrine.Id. at 413. The Second Circuit granted the governmenst’ motion to
dismiss for lack of appellate jurisdiction and denied Darin mandamus relief. Appellate Order,
supra note 12, at 1–2. In so doing, the court affirmed the district court’sfinding that Darin was a
fugitive and that he is not able to challenge the complaint until he submits to the court’s juriscd-i
tion. United States v. Hayes (Hayes II), 118 F. Supp. 3d 620, 629 (S.D.N.Y. 2015) (No. 12 MAG
140 Hijazi, 589 F.3d at 412. The court determined that, excepting the brief visit to the United
States once, sixteen years prior the filing of the complaint, Hijazi had never been in the United
States, never been in Illinois and did not own any property in the United StatIeds.. In light of
these facts, it would be improper to say that Hijazi had fled the jurisdiction or fled from restraints
placed upon him. Id. As a result, the doctrine did not “directly” apply to him. Id.
141 See id. at 412–13 (detailing Hijazi’s past presence in the United States, which amounted to
a brief visit sixteen years ago on unrelated affairs, which clearly demonstrate he did not flee from
the jurisdiction nor was he attempting to evade any restraints placed on him). As a result, he is not
a fugitive and the doctrine was not an appropriate mechanism to rely on in refraining from hearing
his motion. Id. The Seventh Circuit found that mutuality was not a concern because, unlike the
district court, they took into consideration the real-life consequences that would befall Hijazi if he
were to lose on his motion to dismiss. Id.
142 Hayes II, 118 F. Supp. 3d at 626–27.
143 See Hijazi, 589 F.3d at 413 (finding that Hijazi’s motion did not lack mutuality because he
would suffer various consequences if he were to lose on his motion to dismi)s;s Hayes II, 118 F.
Supp. 3d at 626 (declaring that Darin’s motion to dismiss lacks mutuality because there is no
mechanism for the court to enforce an adverse judgment against him until he submits to U.Su.-j
risdiction). The Seventh Circuit viewed mutuality concerns in a broader context than did the
Second Circuit. Hijazi, 589 F.3d at 413 (stating thatthe district court did not fully appreciate the
extent of the consequences that would befall Hijazi if he lost on his motion to dismiss). Just because
Hijazi would be able to remain in Kuwait where the decision to deny his motion to dismiss would
seem to have no practical effect does not negate the re-lailfe effects of having criminal charges
pending in a foreign country.See id. In adopting the district court order, the Second Circuit
believed that the burdens imposed by disentitlement, such as restricteadbility to travel, tarnished
reputation and difficulty in obtaining/retaining employment, are common to all fugitives and
cannot be seen to outweigh the benefits bestowed on the defendant by being able to remain free in
Switzerland. Hayes II, 118 F. Supp. 3d at 626–27.
144 See Golden, supra note 98 (noting that application of the fugitive disentitlement doctrine
involves an issue of integral fairness to both foreign defendants and the U.S. government and
C. Does a Narrow or Broad Interpretation of Mutuality Better Serve the
Purposes of the Fugitive Disentitlement Doctrine?
Although several rationales underlie the fugitive disentitlement cd-o
trine, mutuality of enforcement is the pivotal concern when a
defendantelgally remains outside of U.S. jurisdiction1.45 Mutuality refers to the ability
of a court’s pronouncement to be effective on a party.146 For purposes of the
doctrine, mutuality favors disentitlement when a favorable outcome benefits
the defendant and an unfavorable decision will not affect the defendan14t.7
The Second Circuit in Darin considered a comparatively narrow set of
consequences that would befall Darin if his motion were not reviewed, in
contrast to those assessed by the Seventh Circuit inHijazi.148 The Seventh
Circuit’s broader analysis of mutuality in Hijazi is a better interpretation of the
doctrine’s essential purposes and thus is the correct standard because it
accounts for the real life consequences for a foreign defendant who has
pending criminal charges in the United States.149
therefore warrants Supreme Court review). The doctrine is one of equity, i.e. one foreign
defendant should not be treated differently than another foreign defendant based solely on which court
they are charged in. Id.
145 See Enforcement of Judgments, U.S. DEP’T OF STATE, https://travel.state.gov/content/travel/
(explaining how enforcement of foreign judgments works). Because recognition and enforcement
of foreign judgments is largely governed by local domestic law of a country, a defendant who is
not present in the country where he has been charged or convicted is unlikely to be directly
constrained by the consequences of the charge or conviction. Id.; see, e.g., Bonahan v. Nebraska, 125.
U.S. 692, 692 (1887) (refusing to rule on defendan’ts motion because he was not in custody and
therefore not bound by any pronouncement); Smith v. United States, 94 U.S. 97, 97 (1876)
(focusing on the importance of enforceability in deciding whether to rule on defenda’nstmotion). The
Supreme Court has continuously relied on the enforceability rationale when choosing to invoke
the doctrine. See Stolley, supra note 39, at 754.
146 See supra note 145 and accompanying text (defining mutuality).
147 United States v. Hayes(Hayes II), 118 F. Supp. 3d 620, 626 (S.D.N.Y. 2015) (No. 12
148 See In re Hijazi, 589 F.3d 401, 413 (7th Cir. 2009)(noting that the district court reviewed
the mutuality concern too narrowly and as a result, granted mandamus relief); Petition,supra note
1, at 31 (stating that the Second Circui’ts interpretation and application of the fugitive
disentitelment doctrine is in conflict with Supreme Court precedent on the issue). Counsel explained that
the Second Circuit’s decision to ignore the practical effects of disentitlement and only review the
legal and procedural effects on Darin does not further the goal of enforceability. Petitiosnu,pra
note 1, at 31. Additionally, Darin is not defying any legal order by remaining in Switzerland and
thus cannot be said to be flouting the juridical procIeds.s.As noted inDegen and
OrtegaRodriguez, disentitling Darin would not serve any remaining rationales underlying the doctrine.
Id.; see Degen v. United States, 517 U.S. 820, 82–425 (1996), superseded on other grounds by
statute, Civil Forfeiture Reform Act of 2000, Pub. L. No 1061-85, 114 Stat. 202 (codified at 18
U.S.C. §§ 983, 985 (2012) and 28 U.S.C. §§ 2466–2467); Ortega-Rodriguez v. United States, 507
U.S. 234, 239–42 (1993).
149 See Hijazi, 589 F.3d at 413 (listing the rea-llife consequences Hijazi would face whether
his motion was denied or held in abeyance until he appeared in the United States). The Seventh
Circuit critiqued the district court’s overly narrow conception of mutuality when it explained that
The Second Circuit’s pronouncement that reviewing Darin’s motion
will either secure him a dismissal or bind him to an unenforceable judgment
with no rea-llife ramifications is overly simplistic because it ignores the
realities of being charged with a crim1e50. When the prosecuting party is
concerned with punishing an individual for violating the law, binding the
defendant to an adverse judgment is not the only way in which punishment
is accomplished.151 Alternative punishments traditionally include a prison
sentence, restitution or probation.152 If the court were to deny Darin’s
motion to dismiss, it would restrict his ability to travel and his ability to
maintain employment, among other repercussions1.53 Additionally, Switzerland
could at any time decide to cooperate with the U.S. government and
voluntarily extradite him, forcing him to confront the charge15s4. These are not
Hijazi had little to lose from an adverse ruling on the merits of his motion.Id. Beyond disagreeing
with the district court’s limited concept of what constitutes mutuality, the Seventh Circuit relied
on the Supreme Cour’ts decision in Degen, which held that the fugitive disentitlement doctrine
may not be applied on the sole basis of“a perceived lack of mutuality”. Id. at 414; see Petition,
supra note 1, at 33 (describing that the Seventh Circu’ist approach to the fugitive disentitlement
doctrine in this context is better because it does not reach beyond its means and uses the doctrine
properly, unlike the Second Circuit).
150 See Petition, supra note 1, at 31–33. Counsel relied on the similar factual scenarios
between Darin’s situation and Hijazi and explained that the similar constraints placed on Hijazi,
prior to the granting of mandamus relief, of pending criminal charges in the United States would
constrain Darin in the same manner. Id.
151 See id. (espousing that real-life consequences, such as inability to travel, loss of job,
freezing of bank accounts, are punishments that Darin would bear until he submitted to U.S. juriscd-i
tion to obtain a determinative ruling on his motion to dismiss). By choosing not to rule on the
merits of Darin’s motion to dismiss, Darin cannot possibly be bound by an adverse judgment but
he is nonetheless punished by the reality of being tied to pending criminal charges in the United
States. Id. Although this is likely not what the government had in mind in terms of punishing
Darin’s alleged extraterritorial criminal conduct, to say his situation does not amount to a punishment
ignores the reality. Id.
152 Dennis Massino, Forms of Punishment in the Criminal Justice Syste,mLEGAL BEAGLE,
153 See supra notes 151–152 and accompanying text. See generally Hijazi, 589 F.3d 401
(listing various consequences that are likely to affect a foreign defendant if he does not travel to the
United States to answer charges against him); Petition, supra note 1, at 30–34 (detailing the results
of applying the fugitive disentitlement doctrine to defendants similarly situated to Darin); Golden,
supra note 98; Shaffer, supra note 100.
154 MICHAEL J. GARCIA & CHRIS DOYLE, CONG. RESEARCH SERV., 98-958, EXTRADITION TO
AND FROM THE UNITED STATES: OVERVIEW OF THE LAW AND RECENT TREATIES 41 (2010). The
United States has had an extradition treaty with Switzerland since September 10, 1997. Id. Despite
the existence of an extradition treaty, a country has a right to refuse to extradite its own nationals,
which is probably the single largest impediment in extradition proceedings.Id. at 13. Switzerland
has also been known to refuse U.S. extradition requests in the past. Nick GiambrunToh,e Best
Countries for Your Escape PlanI,NT’L MAN
http://www.internationalman.com/articles/whichcountries-can-the-nsa-whistleblower-escape-to [http://perma.cc/K983-5JGP]. Despite
Switzerland’s history of declining to extradite nationals to the United States, it can choose at any time to
insignificant burdens; they are real life consequences that Darin would have
to bear indefinitely.155 The Second Circuit, unlike the Seventh Circuit,
however, has chosen to restrict itself to viewing mutuality only in terms of
legally binding the defendant to a final judgment on the merits. 156
In restricting its view of mutuality in this way, the Second Circuit is
not furthering the underlying goals of labeling a defendant a fugitive for
purposes of disentitling him of his rights to use the judicial syste m157.
Rather, this view uses the doctrine as way of forcing an outcome that it desires,
namely to get Darin to submit to U.S. jurisdiction15.8 If the court had
considered other goals of the doctrine, such as discouragement of flight
orneturn over Darin to U.S. authorities and he has no idea of when this could happen to him and atthat
point he has no choice to but to submit to U.S. jurisdiction. See id.
155 See Kingsley Napley, Interpol Red Notices and How to Deal with Them, LEXOLOGY (Jan. 7,
2013) www.lexology.com/library/detail.aspx?g=1279d646-9189-40b0-817a-25ae9a4e873a [http://
perma.cc/PLP6-N6UJ]. Not only would international travel become extremely risky for Darin and
his personal and professional reputations be tarnished but banks may force Darin to close his
account(s) with them because they may be concerned about complying with Anti-Money Laundering
obligations. Id. Darin will also risk that the Swiss government will open its own criminal inveis-t
gation into him, separate from the one initiated in the United States. Id.
156 Compare United States v. Hayes (Hayes II), 118 F. Supp. 3d 620, 626–27 (S.D.N.Y. 2015)
(No. 12 MAG 3229)(explaining why disentitling Darin supports the rationales behind the
doctrine), with In re Hijazi, 589 F.3d 401, 413 (7th Cir. 2009) (detailing why disentitling Hijazi would
not serve the purposes of the doctrine).
157 Petition, supra note 1, at 33; cf. Hayes II, 118 F. Supp. 3d at 626–27. The court only
examined how Darin would be affected by any order entered against him and noted that he will “nc-o
tinue to ignore any order made by this court by simply remaining in Switzerland, his home
country.” Hayes II, 118 F. Supp. 3d at 626. The court further noted that an adverse judgment will force
him to choose between two undesirable situations, continue to live in Switzerland with teh-e r
straints imposed by criminal charges in the United States or submit to extraditioInd.. at 627. In
essence, Darin’s choice is to either continue to elude U.S. authorities or comply with an arrest
warrant, and because Darin is unlikely to comply with an unfavorable disposition, there is no
mutuality. Id. The decision to disentitle Darin under the doctrine is not appropriate because it does
not support the other rationales for applying the doctrine such as promoting -sseulfrrender,
discouraging prison escapes, and supporting the efficient operation of appellate courStes.e supra
notes 56–73 and accompanying text (outlining various rationales underpinning the doctrine). By
carving out one definition of mutuality and saying that is the only one that matters ignores reality.
See Petition, supra note 1, at 31–33 (describing why ascribing to only one narrow definition of
mutuality does not take into consideration real life).
158 See Petition, supra note 1, at 14–15 (stating how the Second Circuit’s interpretation of the
collateral order doctrine and the fugitive disentitlement doctrine allowed the court to find that
Darin was a fugitive and thus did not have to review the merits of his motion to dismiss). Darins’
constitutional argument is that he should not have to appear in the United States and stand trial
because there isn’t a sufficient nexus between himself and the United StateIsd.. The problem,
however, is that the Second Circuit’s application of the fugitive disentitlement doctrine maintains
that Darin cannot assert that defense without entering the United States and submitting himself to
its jurisdiction. Id. The Second Circuit’s application of both doctrines was done with one goal in
mind yet the application is incongruous with prior Supreme Court rulings and cannot stand. See id.
couragement of self-surrender, it is abundantly evident that declaring Darin
a fugitive for purposes of disentitling him would not further these goals.159
The Second Circuit’s decision creates a “constitutional vacuum” for
similarly situated defendants.160 It essentially renders the prosecution of a foreign
citizen for any alleged criminal conduct that occurs outside the United States
immune from review unless the foreign citizen voluntarily submits himself to
U.S. jurisdiction.161 Such individuals, automatically deemed fugitives, are
unlikely to travel to the United States, thus leaving unresolved the underlying
issue of the reach of extraterritorial application of U.S. law16.2 If the United
States wants Darin, and similar defendants, to appear in its courts and ensure
that he be bound by any adverse judgment, the fugitive disentitlement
doctrine, as it stands, is not the appropriate vehicle for achieving that goal.163
III. FOREIGN DEFENDANTS WHO REFUSE TO APPEAR IN THE UNITED
STATES SHOULD NOT AUTOMATICALLY BE LABELED FUGITIVES
AND DISENTITLED OF THEIR RIGHTS IN JUDICIAL PROCEEDINGS
The Second Circuit’s decision in Darin created a circuit split on the
appropriate application of the fugitive disentitlement doctrine to foreign
defendants.164 In October 2016, Darin filed a petition of certiorari to the
United States Supreme Court and on March 6, 2017 the Supreme Court
denied the petition without commen1t6.5 This Part argues that the Supreme
Court should have granted certiorari in order to establish a uniform
application of the doctrine so as to guarantee no-ndisparate treatment of similarly
159 See Hijazi, 589 F.3d at 403 (explaining that the doctrine did not exactly apply to Hijazi
because he had yet to be convicted of a crime and had never been physically present within the
court’s jurisdiction). The Seventh Circuit declined to determine that Hijazi was a fugitive and thus
disentitling him would not serve the purposes of discouraging escape and promot-ing self
surrender. See id. Additionally, Hijazi was not about the dismissal of an appeal but about
demanding review of the merits of a motion, and disentitling him would not serve the purpose of
promoting efficacious operation of the appellate process.See id. Darin is in the exact same situation.See
Petition, supra note 1, at 7–8.
160 See Petition, supra note 1, at 33.
161 Id. at 33–34.
162 See id. at 33 (relying on Asahi Metal Indus. Co. v. Superior Court of California, 480 U.S.
102, 115 (1997), for the notion that a careful inquiry must be conducted when extending
application of U.S. law and asserting U.S. jurisdiction in the international field);infra notes 184–193 and
accompanying text (explaining the importance of testing the boundaries of U.S. law on the
international stage and how the Seventh Circuist,’ and not the Second Circu’ist, construction of the
fugitive disentitlement doctrine will allow this).
163 See Petition, supra note 1, at 31 (stating that the Second Circui’ts application of the
fugitive disentitlement doctrine is not in conformance with the Supreme Cou’srt prior decisions and
thus is not an available tool to force Darin to appear in the United States).
164 See supra note 139 and accompanying text (comparing the Second and Seventh Circu’ist
application of the fugitive disentitlement doctrine).
165 See Darin v. United States, 137 S. Ct. 1223 (2017) (mem.) (denying petition for certiorari).
situated defendants.166 Section A explains the unfair and factional treatment
that foreign defendants will continue to receive as a result of the ongoing
circuit split.167 Section B argues that the Seventh Circuit’s position should
be chosen as the standard, as this will serve the purposes of the doctrine and
allow the outer limits of extraterritorial application of U.S. law to become
A. Inconsistent Treatment for Similarly Situated Defendants Based Solely on Prosecuting Jurisdiction Is Fundamentally Unfair
Similarly situated foreign defendants should not be treated differently
based only on the fact that they are charged in different U.S. jurisdictions.169
Hijazi and Darin represent two defendants in that exact situation: both were
foreign nationals charged in the United States for alleged criminal conduct
that took place outside the United States yet their cases had opposite
outcomes for no discerning reason.170 Factually similar cases with
contradictory outcomes are precisely the cases that the Supreme Court should be
hearing.171 Denying certiorari was a missed opportunity for the Supreme Court
to rectify this discordant treatment, however the Court cannot avoid
con166 See infra notes 169–193 and accompanying text.
167 See infra notes 169–183 and accompanying text.
168 See infra notes 184–193 and accompanying text.
169 See Kiran H. Griffith, Fugitives in Immigration: A Call for Legislative Guidelines
onDisentitlement, 36 SEATTLE U. L. REV. 209, 212 (2012) (explaining that issues arise in immigration
cases when a petitioner may be a fugitive in one jurisdiction and not another for purposes of the
fugitive disentitlement doctrine). The circuit courts are divided on whether an alien is considered a
fugitive for failing to appear for a DHS hearing but is otherwise in the jurisdiction. Id. at 211. This
individual is not a fugitive in the Ninth Circuit, will probably not be a fugitive in the Second Cr-i
cuit but probably will be a fugitive in the Fifth and Seventh Circuits.Id. at 212. This split creates
inequality and reinforces unpredictability in application of the doctrine to this class of petitioners.
170 See supra notes 111–138 and accompanying text (comparing the factual similarities
between Hijazi and Darin).
171 See Evan Bernick, The Circuit Splits Are out There—and the Court Should Resolve Them,
16 ENGAGE 36, 36 (2015) (detailing factors that influence the Supreme Cour’ts decision to grant
certiorari). In a talk given by Chief Justice John Roberts at the District of Columbia judicial
conference, he underscored the fact that circuit splits are by far the most compelling factor in deciding
whether to grant certiorari. Id. Supreme Court Rule 10 instructs the justices to consider, in
decdiing whether to grant certiorari, whether a federal circuit court has entered a decision that is in
conflict with another circuit court’s decision on an important federal question. SUP. CT. R. 10. The
Supreme Court is under no obligation to review writs of certiorari but often chooses to hear cases
based on whether a ruling might reconcile conflicting positions on an issue between the federal
circuit courts. Supreme Court Procedur,esUNITED STATES COURTS, http:/w/ww.uscourts.
fronting the issue for long because the nature of globalization means it will
reappear sooner rather than later.172
The deepening circuit split on appropriate application of the doctrine is
a cause for concern.173 Similar, if not identical, criminal conduct will
continue to be treated differently based solely on the jurisdiction that decides to
prosecute the conduct.174 Both sides to the dispute will continue to confront
issues of fundamental fairness.175 Until the Supreme Court chooses to hear a
case on this issue, similarly situated foreign defendants who are prosecuted
in jurisdictions overseen by the Second Circuit will continue to receive less
favorable and misguided treatment than counterparts prosecuted in theu-j
risdictions controlled by the Seventh Circuit.176
172 See Lisa Savitt &Melissa Pierre, Personal Jurisdiction and the Foreign Defenda,nt
GPSOLO MAG., Sept. 2006, at 36, 36–37(stating how globalization has forced a departure from
standard rules that regulate personal jurisdiction in the United States). Advances in technology and
a growing global economy have forced a broadening of traditional jurisdictional rules to hail
foreign defendants into court in the United StatesI.d. How these rules actually work is important
because foreign defendants increasingly use the defense of lack of personal jurisdiction to avoid
the burden of traveling to and litigating an expensive case in the United States. Id.
173 See Petition, supra note 1, at 34 (explaining that if the Second Circui’ts application of the
doctrine continues to be deemed valid, Fifth Amendment protections will continue to be undercut);
Jeanine Kerridge, Is a Non-United States Citizen Who Refuses to Leave His Home Country to Face
FCPA Charges a Fugitive from Justice?L,EXOLOGY (Sept. 30, 2014) http//:www.lexology.com/
(outlining the facts ofIn re Han Yong Kimand the Ninth Circuit’s decision to label him a
fugitive). As part of his petition for certiorari to the Supreme Court, the edfendant pointed to the U.S.
government’s increased extraterritorial prosecution of civil and criminal cases to highlight the fact
that the issue will continue to appear and thus the Court should hear his case and take the
opportunity to resolve the circuit split. See Petition, supra note 1, at 33–34.
174 See generally Wayne A. Logan, Constitutional Cacophony: Federal Circuit Splits and the
Fourth Amendment, 65 VAND. L. REV. 1137 (2012) (examining the unequal rights given to
individuals because of circuit splits, through the lens of Fourth Amendment rights). As a result ofhte
Supreme Court declining to hear numerous cases concerning the Fourth Amendment, the rights of
citizens and the scope of law enforcement’s authority vary across jurisdictions resulting in
disparate rights for citizens of the same country. Mary Garvey AlgeroA, Step in the Right Direction:
Reducing Intercircuit Conflicts by Strengthening the Value of Federal Appellate Court Decision,s
70 TENN. L. REV. 605, 621 (2003) (arguing why federal circuit splits need to be resolved); Logan,
supra, at 1140. Professor Daniel Meador understands the rationales behind allowing constitutional
questions to percolate in the circuit courts but does not find this rationale has any merit when it
comes to interpretation of statutes. Algeros,upra, at 621. Statutory law should have a precise
definition so that all litigants in federal court are subject to the same law, thereby being treated
175 Golden, supra note 98. Not only does the doctrine affect both parties in cases involving
prosecution of foreign defendants, but the application of the doctrine has realistic consequences
for both parties and determining the appropriate application is crucial. See id.
176 Compare In re Hijazi, 589 F.3d 401, 414(7th Cir. 2009) (concluding that the rationales
behind the fugitive disentitlement doctrine do not support disentitlement based on the facts)w,ith
United States v. Hayes (Hayes II), 118 F. Supp. 3d 620, 627 (S.D.N.Y. 2015) (No. 12 MAG 3229)
(imposing fugitive status on Darin and finding that the motives supporting the fugitive disentiet-l
ment doctrine support disentitlement based on the facts).
The Southern District of New York has jurisdiction over major
finacial centers with a home base in New York, specifically in Manhattan,
making it the venue for disposition of a significant number of cases pertaining
177 As international business continues to
to international business matters.
expand, the Southern District of New York will likely prosecuteincreasing
numbers of financial and other whi-tceollar crimes involving foreign
defendants.178 It is thus reasonable to posit that cases where the fugitive
disentitlement doctrine is invoked will also increa1s7e9. The Supreme Court’s
decision to deny certiorari inDarin, was a missed opportunity to enunciate
a clear standard and it is reasonable to assume that the number of indefinite
pending cases in that district will accumulate rapidly as a result.180
177 See United States District Court for the Southern District of New York, WIKIPEDIA, https://
[http://perma.cc/PC6A-2RCH] (stating that appeals from decisions in the Southern District are
heard by the Second Circuit). Decisions from the Southern District of New York, and by extension
appeals from the Second Circuit, are very persuasive because of the courts’ jurisdictionover a large
number of prominent financial businesses. Id.; see, e.g., Second Circuit Docket List, BLOOMBERG L.,
eab (listing 325 anti-trust cases currently pending in the Second Circuit). This docket list is only
one of several representing the high volume of ongoing business litigation in the Second Circuit.
178 See Mike Koehler, Measuring the Impact of NonP-rosecution and Deferred Prosecution
Agreements on Foreign Corrupt Practices Act Enforceme,n4t9 U.C. DAVIS L. REV. 497, 524
(2015) (relying on a statement from a Commerce Department official about the United St’ates
heightened concern with combatting increased corruption in global business transactions);
Editorial Board, United States v. YehIllustrates the Challenges in International Trade Secrets Cas,es
TRADE SECRETS WATCH (Apr. 10, 2014) https://blogs.orrick.com/trade-secrets-watch/2014/04/
http://perma.cc/JPS6L6BD] (explaining that the trial of Ellen Yeh involves a number of important issues relevantto an
“increasingly global knowledge economy”); Kirby Behre et al., DOJ Is Losing the Battle to
Prosecute Foreign Executives, LAW360 (Mar. 3, 2015)
https/:/www.law360.com/articles/626482/dojis-losing-the-battle-to-prosecute-foreign-executives [https://perma.cc/BD5X-5UZL] (stating that
increases in global whitec-ollar investigations has resulted in a growing number of individual
defendants who are not located in the United States);Marshall L. Miller, Principal Deputy
Assistant Att’y Gen., Crim. Div., U.S.Dep’t of Justice, Remarks at the Global Investigation Review
Program (Sept. 17, 2014)
https:/w/ww.justice.gov/opa/speech/remarks-principal-deputy-assistantattorney-general-criminal-division-marshall-l-miller [https://perma.cc/45SJ-FF9P] (stating that
prosecuting individuals for white-collar crimes is a top priority for the DOJ’s criminal division).
179 See Peter H. Acker, A Critique of the Fugitive Disentitlement Doctrine and Why It Should
Not Apply in Certain Immigration Proceeding,s IMMIGRATION LAW OFFICES OF P.H. ACKER &
ASSOCS., LLC (stating that the doctrine has become an important strategic tool that has beenn-i
voked with increased frequency in order to get cases dismissed at the federal appellate level).
180 See Behre et al.,supra note 178 (explaining how whitceo-llar investigations charging
companies are significantly more successful than when individual defendants are charged).
Foreign individuals are significantly less likely to plead guilty to FCPA charges than companiesS.ee
id. As a result, it is harder to secure convictions against themI.d. Those individuals who choose
not to plead guilty remain in their home nation, while hundreds of similar charges against other
foreign defendants remain pending and backlog the U.S. courtsystem. Id.; see also infra note 181
and accompanying text (explaining the consequences from the lack of a national standard in
application of the fugitive disentitlement doctrine to foreign defendants).
In establishing a standard for the application of the fugtive
disentitlement doctrine to foreign defendants, the Supreme Court would enhance
predictability in these types of case1s8.1 A clear standard will address the
legitimate concerns of both parties to the dispute and should reduce, if not
eliminate, unnecessary delay due to disagreement over the peculiar
treatment of foreign defendants and their judicial right1s8.2 With these
preliminary disagreements no longer an issue, the courts will be able to move on to
the merits of the case, where their attention should be focused.183
B. Adoption of the Seventh Circuit Standard Will Permit the United States to Test the Outer Limits of Extraterritorial Application of U.S. Law
Resolving the fugitive disentitlement doctrine split is important in its
own right, but it may also help refine the limits of applying U.S. law
exatrterritorially.184 At their core, the cases ofDarin and Hijazi were not about
fugitives and their judicial rights but about prosecuting foreign nationals
181 See Arthur D. Hellman, Precedent, Predictability and Federal Appellate Structure, 60U.
PITT. L. REV. 1029, 1031 (1999) (explaining how federal appellate courts have rendered an- i
creasing number of decisions, many of which conflict, without continued Supreme Court
supervision). When the Supreme Court chooses not to hear cases where the circuits are split, leaving in
place judge made law, the outcomes of cases are less predictable an“dquirky.” Id. Thus, a
Supreme Court decision on whether the Second or Seventh Circu’ist application of the fugitive
dsientitlement doctrine is the national standard would serve aas control over judge-made law and
enhance predictability in cases. See id.
182 See Colin W. Maguire, The Fugitive Disentitlement Doctrine, WMU-COOLEY L. REV. 4 (2012)
https://works.bepress.com/colin_maguire/7/ [https://perma.cc/W4SN-SHM3] (describing why it is
imperative that either Congress or the Supreme Court provide clarity as to who qualifies as a
fugitive under the fugitive disentitlement doctrine). The term fugitive could be restricted to its
common law application, which encompasses only someone who has committed a crime in a
jurisdcition and subsequently flees and hides himself, or it could be interpreted expansively to where it
would include a foreign alien who has never been in the United States.See id. The current issue is
that the Supreme Court, in deciding to repeatedly deny petitions of certiorari on the matter, has left
unregulated the appellate courts’ discretionary authority under the fugitive disentitlement doctrine
and left unresolved important preliminary issues affecting both sides to a case. See id. at 6–7.
183 See generally Nathan Capone, Trial of Serious Harm by Preliminary Issue Not
Appropirate in All Cases, FIELDFISHER: DEFAMATION L. BLOG (Jan. 15, 2016, 5:09 PM)
[perma.cc/7Y5K3AUU] (explaining how the courts would become even more backlogged if every defamation case
was subject to a preliminary issue trial on the definition of“serious harm”). Preliminary hearings
on non-core issues increase delay and costs of litigation. See id.
184 Lea Brilmayer & Charles NorchiF,ederal Extraterritoriality and Fifth Amendment Due
Process, 105 HARV. L. REV. 1217, 1222 (1992) (explaining that the application of American federal
statutes is not merely an academic problem but an issue that raises serious practical concerns).
Extarterritorial application of U.S. law has been a dominant tool in furthering American policy goals
overseas. Id. If courts are not able to so liberally invoke the fugitive disentitlement doctrine against rf-o
eign defendants, more defendants will be able to present defenses against alleged violations of the
Foreign Corrupt Practices Act or RICO violaiotns. Golden, supra note 98. By allowing foreign
defendants to contest U.S. criminal charges, while residing outside the United States, the limits of
extraterritorial reach of U.S. federal statutes will become apparent/will continue to evolve. See id.
under U.S. law for conduct that occurred outside of tUhenited States.185
Once the fugitive controversy is resolved, the courts can then turn theirt-a
tention to the various substantive questions presented by the cases.186
Extraterritorial application of U.S. law is foremost a question of
legislative intent.187 There is a presumption that U.S. federal law applies only
within the country and that courts will interpret and apply congressional
statutes in a fashion that does not impinge on international la w18.8 In some
cases, Congress has explicitly stated that certain stuattes apply outside of
the United States, evidencing clear congressional inten1t8.9 In other
situations, courts have found implied congressional intent for certain federal
criminal statutes to operate overseas.190 The congressional intent must then
185 See In re Hijazi, 589 F.3d 401, 403 (7th Cir. 2009) (charging Ali Hijazi with violation of
the major fraud statute under 18 U.S.C.§ 1031(a) (2012) and violation of the wire fraud statute
under 18 U.S.C. § 1343); Complaint, supra note 2, at 1 (charging Roger Darin with conspiracy to
commit wire fraud under 18 U.S.C. §§ 1343, 1349).
186 See Jay Tidmarsh, Resolving Cases “On the Merits”, 87 DENV. U. L. REV. 407, 409
(2010) (stating Roscoe Pounds’ dissatisfaction with the need to decide procedural technicalities
before reaching the true merits of the case). In order to resolve a case on the merits, it is necessary
to decide the procedural barriers that preclude a court from moving forward and deciding the
substantive issues of law in a case. Id.
187 See Lea Brilmayer, The Extraterritorial Application of American Law: A Methodological and
Constitutional Appraisal, 50 L. & CONTEMP. PROBS. 11, 14 (1987) (explaining that the American
court system operates under the obligation to promote conduct in conformance with legsilative
mandates, whether such mandates may conflict with another nation’s laws or international lawC);HRIS
DOYLE, CONG. RESEARCH SERV., 94-166, EXTRATERRITORIAL APPLICATION OF AMERICAN
CRIMINAL LAW (Summary) (2016) (stating that application of American criminal law outside of the United
States is first and foremost a question of express or implied legislative intent).
188 Cafarelli, supra note 89, at 257. If Congress’s intenton the extraterritorial reach of a
statute is unclear, U.S. courts will construe the statute in a manner that is least likely to result in
unreasonable intervention in a sovereign country’s affairs. Id.
189 Doyle, supra note 187, at 9. Many federal criminal statutes enjoy expresesxtraterritorial
application, such as 18 U.S.C. § 115 (violence against federal officials, former officials and
members of their families), 18 U.S.C. § 1111 (murder), 18 U.S.C. § 1460 (sale or possession with
nitent to sell obscene material), and 18 U.S.C. § 1957 (prohibited monetary transactions from
specific unlawful activity). Id. at 42–43. These statutes have been expressly granted extraterritorial
application mainly in the context when the conduct occurs “within the special maritime and
territorial jurisdiction of the United States.” Id. at 15.
190 Id. at 19. District courts have interpreted the holdings iUnnited States v. Bowman,260
U.S. 94 (1922) (announcing that the nature and purpose of a statute indicate whether Congress
intended it to apply outside the United States) and Ford v. United States, 273 U.S. 593, 623 (1927)
(stating that an individual, who is outside of the United States, who partakes in conduct that
affects interests in the United States will be held liable in the UnitedStates) to mean a large number
of federal criminal statutes are binding on individuals outside of the United States via Congress’s
implied intent. Id. The Court in RJR Nabisco, Inc. v. The European Communityendorsed implied
congressional intent to extend extraterritorial application o“pfiggyback” statutes—conspiracy,
attempting, aiding and abetting—whose application is based on a separate crime. 136 S.Ct. 209,0
2102 (2016); Doyle, supra note 187, at 20.
be considered in light of best practices in foreign relation1s9.1 If courts are
not allowed to automatically invoke the fugitive disentitlement doctrine in
cases involving extraterritorial application of U.S. law, foreign defendants
will be allowed to test the U.S. government’s ability to bring criminal
charges for violations of the Foreign Corrupt Practices Act, antitrust laws,
and securities laws, among others.192 This will create a more developed and
practical body of legal precedent for these types of cases.193
The fugitive disentitlement doctrine is aimed at preventing criminals
who have escaped imprisonment or fled the jurisdiction from reaping the
benefits of the judicial process. The doctrine was not meant to be a means to
force foreign defendants who have never been to the United States to travel
to the jurisdiction if they want to challenge the criminal complaint filed
against them. In light of this, the Second Circuit’s application of the
doctrine in United States v. Darin is inappropriate. The Supreme Court should
have granted certiorari and mandated that the Seventh Circuit’s application
of the doctrine controls as it pertains to foreign defendants. With this
standard in place, the U.S. court system will be able to adjudicate pressing issues
concerning extraterritorial application of U.S. law.
CHLOE S. BOOTH
191 Doyle, supra note 187, at 1. An astonishing number of federal criminal statutes are eligible
for extraterritorial application however the number of prosecutions of foreign defendants under
these statutes has been low.Id. Besides the obvious legal and practical hurdles that factor in in
deciding whether to prosecute foreign defendants under U.S. federal criminal statutes, diplomatic
concerns are another factor that may advise against exercising extraterritorial jurisdictiIodn.;.
Ethan A. Nadelman, The Evolution of United States Involvement in the International Rendition of
Fugitive Criminals, 25 N.Y.U. J. INT’L L. & POL. 813, 814 (1993). Even if the United States has a
legal basis to obtain custody of a fugitive overseas, the decision on whether to exercise that
authority has primarily been hindered by “considerations of sovereignty, laws and political reactions
of foreign states.” Nadelman, supra, at 814. Extradition is the most favored route of securing
fugitives, but it is not always an available option and at that point the government must consider
numerous factors in how to go about retrieving the fugitive. See id.
192 Golden, supra note 98.
193 See Brilmayer, supra note 187, at 17 (explaining the issues federal judges currently face in
determining where a statute should apply to extraterritorial conduct). If a statute does not
explictily say when and to whom it should apply, the court assuredly ends up relying on its own views in
making a decision. Id. Without explicit direction from Congress on correct application, it would
be proper to interpret the statute in a manner the court finds most palatabIdle.. This results in
different courts announcing different rules based on interpretation of the same statutes and does
not provide uniform and predictable legal standards. See id.
29 See Glen , supra note 14 , at 751 (stating the fugitive disentitlement doctrine stems from the court's inherent authority to regulate the appellate process); Russo, supra note 24, at 1049 (relying on Rule 47 of the Federal Rules of Appellate Procedure for the assertion that appellate courts have the authority to promulgate procedural rules for their court so long as they are not in conflict with any other rule or the Constitution) .
30 United States v. $ 40 , 877 .59 in U.S. Currency, 32 F.3d 1151 , 1152 ( 7th Cir . 1993 ) (stating the Supreme Court's aversion to ruling on a motion when a favorable decision benefits the fugitive defendant and an unfavorable decision can be avoided by the fugitive defendant ).
31 See Smith v . United States , 94 U.S. 97 , 97 ( 1876 ) (exercising the Court's inherent authority to dismiss an appeal of a criminal who escaped from prison); Gary P . Naftalis & Alan R. Friedman , Fugitive Disentitlement in Civil Forfeiture Proceedings, N.Y.L.J. , Dec . 19 , 2002 , at 1 (explaining that the doctrine initially arose as a mechanism of judicial construction granting appellate courts the power to dismiss appeals of defendants who remained fugitives at the time of their appeal).
32 E.g., Allen v . Georgia , 166 U.S. 138 , 138 ( 1897 ); Bonahan v . Nebraska , 125 U.S. 692 , 692 ( 1887 ); Smith, 94 U.S. at 97.
33 N. Brock Collins , Note,Fugitives and Forfeiture-Flouting the System or Fundamental Right?, 83 KY . L.J. 631 , 637 1 ( 994 - 1995 ). Courts have previously deemed defendants to be a fugitive based on their “state of mind.” Id.; see United States v . Eng , 951 F.2d 461 , 464 ( 2d Cir . 1991 ) (explaining that evading authorities does not necessitate a physical act). The court found that the defendant was a fugitive, despite being imprisoned overseas, because he had not made sufficient effort to return to the United States . Eng, 951 F.2d at 465.
34 See infra notes 37-54 and accompanying text.
35 See infra notes 55-84 and accompanying text.
36 See infra notes 85-110 and accompanying text.
48 See Molinaro v. New Jersey, 396 U.S. 365 , 366 ( 1970 ) (holding that courts may dismiss a defendant's pending appeal if he escapes custody during the pendency period); Smith v . United States , 94 U.S. 97 , 97 ( 1876 ) (announcing the co'usrtability to dismiss an escaped prison'esr appeal); United States v . Amado , 754 F.2d 31 , 31 ( 1st Cir . 1985 ) (concluding that dismissal of an appeal with prejudice is acceptable if the petitioner flees after filing the appeal ).
49 See Abney v. United States , 431 U.S. 651 , 656 ( 1977 ) (recognizing that there is no consi-t tutional right to an appeal and that it is entirely a statutory invention).
50 28 U.S.C. § 1291 ( 2012 ). The provision states that courts of appeals shall have jurisdiction over all appeals from decisions of all district courts of the United StateIsd ..; Jason Joseph, The Fugitive Dismissal Rule Applied to PreA-ppeal Fugitivity, 84 J. CRIM . L. & CRIMINOLOGY 1086 , 1097 ( 1994 ). In his dissenting opinion, on other grounds, iOn rtega-Rodriguez v. United States, Chief Justice Rehnquist noted that the fugitive dismissal rule does not violate a state statute conferring a right to appeal on criminal defendants because the statute does not establish the procedural requirements to file a valid appeal .507 U.S. 234 , 253 ( 1993 ) (Rehnquist, C .J., dissenting); Joseph, supra, at 1097 .
51 Altman, supra note 39, at 1051-58 (illustrating the rule's reasonableness by virtue of its continued use over time); see , e.g., Allen v . Georgia , 166 U.S. 138 , 141 ( 1896 ) (holding that the defendant's escape from custody deprived him of his right to appeal his conviction).
52 FED. R. APP . P. 47 . “ Each court of appeals acting by a majority of its judges in regular active service may, after giving appropriate public notice and opportunity for comment, make and amend rules governing its practice . ” Id . 47 ( a ). “A court of appeals may regulate practice in a particular case in any manner consistent with federal law, these rules, and local rules of the circu”it . Id. 47 (b); Altman, supra note 39, at 1051.
53 Altman, supra note 39, at 1051.
54 Id. at 1050.
55 D.J.R. , Recent Cases , 19 GEO. WASH. L. REV. 397 , 429 ( 1950 ) (stating that dismissal of an escaped prisoner's pending appeal is an established principle in the U.S. court system);see Smith, 94 U.S. at 97(noting that it is within the courst' discretion to decline to hear a criminal appeal unless the defendant appears before the court and can be bound by any judgment).