A recent ruling by the Second Circuit Court of Appeals may mark the beginning of a previously foreclosed avenue for foreign defendants to challenge criminal charges brought against them in the U.S. while remaining in their home country. In United States v. Muriel Bescond, the Second Circuit reversed the lower court’s finding that Bescond, a French national residing in France, was a fugitive simply because she did not waive extradition and submit to U.S. jurisdiction.
Typically, when a foreign national is charged with a crime in the U.S., they are faced with a choice between two lose-lose situations: (1) waive extradition and appear in the U.S. court voluntarily, which is a risk itself and makes challenging U.S. jurisdiction over their person nearly impossible, or (2) challenge extradition from their home country and the U.S.’s jurisdiction to prosecute them, which historically means being labeled a fugitive by the American legal system. Being labeled a fugitive has many far-reaching negative consequences, including being detained pending trial if the defendant is eventually extradited. The fugitive disentitlement doctrine allows federal district courts to insist that a defendant be present in the court’s jurisdiction before the court can resolve any challenges to criminal charges. Most federal courts have applied this doctrine when a foreign defendant tries to challenge the jurisdictional validity of a U.S. indictment from their home country, which operates to bar such a challenge.
Bescond, a French citizen and resident with no ties to the U.S., was indicted in the U.S. for violating the Commodity Exchange Act (“CEA”) by allegedly transmitting false, misleading, and inaccurate commodities reports. The reports were used to calculate the LIBOR benchmark interest rate and by artificially reducing LIBOR rates, pricing of futures contracts traded on the Chicago Mercantile Exchange were affected. When she tried to challenge the indictment on various grounds from France (who would not extradite her) the District Court for the Eastern District of New York held she was a fugitive and declined to consider the merits of her motions under the fugitive disentitlement doctrine.
When Bescond appealed, the Second Circuit not only held that it had jurisdiction under the collateral order doctrine to consider her interlocutory appeal of disentitlement but also held that she was not a fugitive and therefore the disentitlement doctrine could not apply. There were several factors the Court considered in determining whether Bescond was a fugitive: (1) she did not take any actions to distance herself from the U.S. or frustrate arrest; (2) she did not flee from the jurisdiction of the court where the crime was committed or attempt to conceal herself; (3) she did not commit a crime while in the U.S., leave the country, and refuse to return once she learned there was a warrant for her arrest to avoid prosecution, and (4) one of the main basis for her challenge to U.S. jurisdiction—the CEA’s extraterritoriality, meaning whether the law she allegedly broke can even reach her and her conduct in the first place—was nonfrivolous.
Will the Bescond case lead more courts across the U.S. to consider jurisdictional challenges from foreign defendants without submitting to U.S. jurisdiction? Or will the Bescond case be viewed as an outlier based on the facts and circumstances specific to that case? That remains to be seen. The Sixth and Eleventh Circuits have previously held they lacked jurisdiction to consider interlocutory appeals from lower court rulings that disentitled fugitives. The applicability to fugitive status and disentitlement doctrine may eventually lead to a split among the circuits, leaving it up to the Supreme Court to conclusively rule on the issue.
Navigating and resolving criminal charges in the United States from a foreign country is extremely complex. Our firm has many years of experience in helping people challenge international extradition and responding to international criminal investigations in many foreign countries. If you or someone you know has international ties and has been accused of a crime in the U.S., contact us to learn more about these cases and how we may be able to help.