In our latest contribution to Law360 Expert Analysis, LSW attorneys Gabrielle Friedman, John Siffert and Jeannie Rose Rubin consider recent developments and open issues relating to the fugitive disentitlement doctrine as applied to foreign defendants who live outside the United States.

When the U.S. Department of Justice criminally charges non-U.S. persons residing abroad, many courts have applied the “fugitive disentitlement doctrine” to  deny adjudication of any motion to dismiss the indictment unless and until the defendant appears in the U.S.  In August 2021, in U.S. v. Bescond, the Second Circuit placed limits on the doctrine, concluding that in some circumstances, foreign defendants who remain abroad do not meet the definition of a “fugitive” and are entitled to consideration of their motions to dismiss.  

Three years after Bescond, the article analyzes recent developments and questions that remain open, and suggests potential benefits of a narrow definition of “fugitive.” 

The authors  consider questions such as:

 

• What is the origin of the fugitive disentitlement doctrine in the U.S. legal system?

 

• What are the contours of the circuit split?

 

• Does an extraterritorial defendant gain an unfair advantage  if their motion to dismiss is heard when they are abroad?

 

• What effect could the fugitive disentitlement doctrine have on the interest of judicial economy?

 

• How could  the prevalence of the fugitive disentitlement doctrine affect charging decisions?

 

LSW is a boutique white collar litigation and investigations firm in New York City with an active cross-border practice representing corporates and individual executives.