Implications of Second Circuit Ruling on Fugitive Disentitlement

The impact of such cases is significant on individuals who live and work abroad. Historically, the "fugitive disentitlement" doctrine has foreclosed challenges to criminal charges by a defendant who does not physically submit to a U.S. court's jurisdiction. As a consequence, to make even threshold challenges to an indictment, a defendant who lives abroad must leave home, waive the right to oppose extradition, and risk pre-trial detention in the United States.

This article we discusses the Second Circuit's recent decision in United States v. Bescond, 7 F.4th 127 (2d Cir. 2021), which held that the defendant, Muriel Bescond, a French citizen charged with commodities fraud, was not a "fugitive." The defendant was prosecuted in the Eastern District of New York for actions that she took in France, where she lived and worked. She sought to challenge the charges from abroad, and the district court, following established doctrine, rejected her challenge on account of fugitive disentitlement. On appeal, a divided panel of the Second Circuit held that disentitlement was an appealable "collateral order" and, further, that Bescond should not have been deemed a fugitive. Under the majority opinion, Bescond would be allowed to pursue her motion to dismiss the indictment while she remains in France.