United States v. Sindzingre ( 2021 )

19-1698
United States v. Sindzingre
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2020
No. 19-1698
UNITED STATES OF AMERICA,
Appellee,
v.
MURIEL BESCOND,
Defendant-Appellant,
DANIELLE SINDZINGRE,
Defendant.
ARGUED: SEPTEMBER 3, 2020
DECIDED: AUGUST 5, 2021
Before: LIVINGSTON, Chief Judge, WALKER, JACOBS, Circuit Judges.
Muriel Bescond, a citizen and resident of France, is charged with violating
the Commodity Exchange Act (“CEA”). She appeals from the memorandum and
order of the United States District Court for the Eastern District of New York
(Seybert, J.), which applied the fugitive disentitlement doctrine and denied her
motions to dismiss the indictment on grounds of (inter alia) extraterritoriality
and due process. On appeal, Bescond argues that the collateral order doctrine
confers appellate jurisdiction to review the application of the fugitive
disentitlement doctrine, and that there is pendent appellate jurisdiction to review
the merits of her challenges based on extraterritoriality and due process. As to
merits, she argues that the district court misapplied the fugitive disentitlement
doctrine, that the indictment impermissibly charges her with extraterritorial
violations of the CEA, and that her prosecution is inconsistent with due process.
We conclude that we have jurisdiction to review the disentitlement ruling, but
none to review the merits of extraterritoriality or due process. We conclude that
Bescond is not a fugitive and, even if she were a fugitive, the district court
abused its discretion in disentitling her. Accordingly, we REVERSE the order
disentitling Bescond and REMAND for further proceedings to consider or
reconsider the merits of her motions to dismiss, and we DISMISS this appeal
insofar as it seeks review of the (alternative) rulings on extraterritoriality and due
process.
Chief Judge Livingston concurs in part and dissents in part in a separate
opinion.
2
__________________
JEREMY R. SANDERS, Appellate Counsel (David C.
James, Alixandra Smith, Andrey Spektor, Assistant
United States Attorneys, for JACQUELYN M. KASULIS,
Acting United States Attorney for the Eastern District of
New York; Carol L. Sipperly, Senior Litigation Counsel;
Timothy A. Duree, Trial Attorney; Brian A.
Benczkowski, Assistant Attorney General; John P.
Cronan, Deputy Assistant Attorney General; on the
brief), Washington, DC and Brooklyn, NY, for Appellee
United States of America.
LAURENCE S. SHTASEL, Blank Rome LLP, New York,
NY, for Defendant-Appellant Muriel Bescond.
DENNIS JACOBS, Circuit Judge:
Muriel Bescond, a French banker, is charged with transmitting false,
misleading, and knowingly inaccurate commodities reports, and with conspiracy
to do the same, in violation of the Commodity Exchange Act (“CEA”). A citizen
and resident of France, she allegedly participated in the LIBOR benchmark
interest rate calculation process from her office in Paris. It is alleged that, by
causing an artificial reduction in LIBOR rates, she affected the pricing of futures
contracts traded on the Chicago Mercantile Exchange. Bescond remains in
France today and has not submitted to the district court’s jurisdiction.
3
Through counsel, Bescond moved to dismiss the indictment on the
grounds that (1) it impermissibly charged her with extraterritorial violations of
the CEA, (2) the prosecution violated her Fifth Amendment due process rights,
(3) the government selectively prosecuted her because she is a woman, and (4)
the statute of limitations had run. The United States District Court for the
Eastern District of New York (Seybert, J.) concluded that Bescond was a fugitive,
exercised discretion to apply the fugitive disentitlement doctrine, and declined to
decide the merits of her motions. Under the doctrine of fugitive disentitlement, a
court may decline to entertain the claims of a defendant who is a fugitive from
justice. Molinaro v. New Jersey, 396 U.S. 365, 366 (1970) (per curiam); Nen Di
Wu v. Holder, 646 F.3d 133, 135 & n.2 (2d Cir. 2011).
In the alternative, the district court rejected the extraterritoriality and due
process challenges on the merits. Since additional briefing would have been
needed to decide the claims of selective prosecution and statute of limitations,
the court did not reach them, even hypothetically.
Because Bescond appeals from a memorandum and order issued pre-trial,
we must first ascertain appellate jurisdiction. Bescond contends (i) that the
collateral order doctrine affords jurisdiction to entertain the challenge to her
4
designation as a fugitive and the exercise of discretion to disentitle her, and (ii)
that there is pendent appellate jurisdiction to decide whether the indictment
impermissibly charges extraterritorial violations of the CEA and whether the
prosecution violates her due process rights. We conclude that we have
jurisdiction to review the order disentitling Bescond, which we reverse, and we
remand for further proceedings to consider or reconsider the merits of her
motions to dismiss. However, we conclude that we lack jurisdiction to review
the merits of the extraterritoriality and due process challenges and dismiss the
appeal to that extent.
BACKGROUND
Muriel Bescond is a French citizen living in France who worked as the
head of the Paris treasury desk at Société Générale (“SocGen”), a global bank
headquartered in France. The indictment charges that, between May 2010 and
October 2011, she participated in a scheme to manipulate the United States
Dollar London Interbank Offered Rate (“USD LIBOR”).
LIBOR is a benchmark interest rate, calculated for various currencies and
borrowing periods, that averages the rates at which certain banks borrow
5
unsecured funds. At the time of the alleged scheme, the USD LIBOR calculation
process began with sixteen “Contributor Panel” banks submitting estimates of
the rates at which they could borrow funds. SocGen, one of the sixteen,
employed “submitters” or “setters” to prepare these estimates and transmit them
to Thomson Reuters in London. Thomson Reuters set aside the four highest
estimates and the four lowest, and averaged the eight estimates in the middle to
arrive at the final USD LIBOR, or the “fix.” The final rate was transmitted to
three data centers for worldwide publication, including one center in
Hauppauge, New York.
The prices of certain financial instruments depend on USD LIBOR. One
such instrument is the Eurodollar futures contract, the price of which reflects the
predicted USD LIBOR at the end of a fixed period. Investors trade Eurodollar
futures contracts as a commodity on the Chicago Mercantile Exchange. 1
In Paris, Bescond supervised SocGen’s setters. At the direction of the
bank’s Global Head of Treasury Danielle Sindzingre, Bescond instructed the
1 Eurodollars are interest-yielding U.S. dollars deposited in foreign banks for
fixed amounts of time. Eurodollar futures contracts are derivatives whose prices
reflect the predicted USD LIBOR at the end of the three-month term of a $1
million deposit. Investors trade Eurodollar futures contracts based on their
predictions of USD LIBOR increases and decreases.
6
setters to prepare false USD LIBOR submissions that were lower than SocGen’s
actual borrowing rates. The object was to protect SocGen’s reputation as a sound
financial institution by understating the rates at which SocGen could borrow
money. The setters transmitted the false USD LIBOR submissions to a SocGen
manager in London, who transmitted them in turn to Thomson Reuters.
SocGen’s false submissions artificially lowered the USD LIBOR fix, affecting
financial transactions that referenced USD LIBOR.
The indictment filed in the Eastern District of New York charged Bescond
with four substantive counts of transmitting false, misleading, and knowingly
inaccurate commodities reports in violation of the Commodity Exchange Act
(“CEA”), 7 U.S.C. § 13(a)(2), and one count of conspiracy to do the same.
Bescond remains in France and has not submitted to the district court’s
jurisdiction. France will not extradite her.
Through counsel, Bescond moved to dismiss the indictment. Her first
motion argued that the indictment violated the Fifth Amendment right to due
process because it failed to allege a sufficient nexus with the United States, and
that the statute of limitations had run. Her second motion argued that the
government was selectively prosecuting women participants in the alleged
7
scheme, while declining to prosecute men who were similarly situated. At the
district court’s request, Bescond filed an additional brief arguing that the
indictment charged an impermissible extraterritorial application of the CEA.
Bescond also argued that, as an alternative to dismissal on grounds of selective
prosecution and statute of limitations, the court should order discovery and
additional briefing from the government on those issues.
The district court concluded that Bescond was a fugitive and made the
discretionary ruling that disentitlement was warranted. Accordingly, the court
declined to reach the merits of Bescond’s motions. The court then issued an
alternative ruling on the merits, in order “to provide the Second Circuit with a
complete record on review.” United States v. Sindzingre, No. 17-CR-0464(JS),
2019 WL 2290494, at *9 (E.D.N.Y. May 29, 2019). It concluded that the indictment
properly charged domestic violations of the CEA and that the prosecution did
not violate Bescond’s due process rights. The court declined to make an
alternative ruling on selective prosecution and the statute of limitations because
“additional briefing and information” would be needed to resolve those issues.
Id. Bescond’s motions to dismiss were denied in a memorandum and order.
8
Bescond has appealed. The government moved to dismiss the appeal on
the ground that we lack jurisdiction for want of a final judgment. A motions
panel of this Court denied the motion, citing the collateral order doctrine.
On appeal, Bescond argues that, as the motions panel concluded, there is
appellate jurisdiction to review the disentitlement ruling under the collateral
order doctrine; and that we should exercise pendent appellate jurisdiction to
review the alternative rulings on the merits of extraterritoriality and due process
(Point I below). She argues that the district court erred in designating her a
fugitive and in exercising discretion to disentitle her (Point II). Finally, she
argues that the indictment charges an impermissible extraterritorial application
of the CEA and violates her due process rights (which we cannot decide for lack
of jurisdiction).
DISCUSSION
I
Courts of appeals “have jurisdiction of appeals from all final decisions of
the district courts of the United States.” 28 U.S.C. § 1291. Known as the “final
judgment rule,” section 1291 “requires ‘that a party must ordinarily raise all
9
claims of error in a single appeal following final judgment on the merits.’”
Flanagan v. United States, 465 U.S. 259, 263 (1984) (quoting Firestone Tire &
Rubber Co. v. Risjord, 449 U.S. 368, 374 (1981)). In a criminal case, the final
judgment rule “prohibits appellate review until conviction and imposition of
sentence.” Id. (citing Berman v. United States, 302 U.S. 211, 212 (1937)). The rule
“minimiz[es] appellate-court interference with the numerous decisions [trial
judges] must make in the pre-judgment stages of litigation[,] . . . reduces the
ability of litigants to harass opponents and to clog the courts through a
succession of costly and time-consuming appeals[, and] is crucial to the efficient
administration of justice.” Id. at 263–64 (citing Firestone Tire, 449 U.S. at 374).
Because these interests “are ‘especially compelling in the administration of
criminal justice,’” the policy underlying the final judgment rule “is at its
strongest in the field of criminal law.” Id. at 264 (first quoting Cobbledick v.
United States, 309 U.S. 323, 325 (1940), and then quoting United States v.
Hollywood Motor Car Co., 458 U.S. 263, 265 (1982)).
Nevertheless, in limited circumstances, a court of appeals may exercise
jurisdiction absent a final judgment on the merits. Under the collateral order
doctrine, a court of appeals has jurisdiction to review an order that (1)
10
“conclusively determine[s] the disputed question”; (2) “resolve[s] an important
issue completely separate from the merits of the action”; and (3) is “effectively
unreviewable on appeal from a final judgment.” Id. at 265 (quoting Coopers &
Lybrand v. Livesay, 437 U.S. 463, 468 (1978), superseded on other grounds by
Fed. R. Civ. P. 23(f)); see Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546
(1949). 2 We apply the collateral order doctrine “with the utmost strictness in
criminal cases.” Flanagan, 465 U.S. at 265.
Relatedly, we may exercise pendent appellate jurisdiction in certain
interlocutory appeals. When we have jurisdiction to review “‘an interlocutory
appeal of one ruling,’” we may also “exercise jurisdiction over other, otherwise
unappealable interlocutory decisions, where such rulings are ‘inextricably
intertwined’ with the order over which we properly have appellate jurisdiction,
or where review of such rulings is ‘necessary to ensure meaningful review’ of the
appealable order.” Atlantica Holdings, Inc. v. Sovereign Wealth Fund Samruk-
Kazyna JSC, 813 F.3d 98, 116–17 (2d Cir. 2016) (quoting Myers v. Hertz Corp., 624
F.3d 537, 552 (2d Cir. 2010)).
2 This case does not implicate the various statutory exceptions to the final
judgment rule. See, e.g., 28 U.S.C. § 1292 (permitting appellate review of certain
interlocutory decisions).
11
We agree with Bescond that we have jurisdiction to review the fugitive
disentitlement ruling pursuant to the collateral order doctrine; we disagree that
we have pendent jurisdiction to review the alternative rulings concerning
extraterritoriality and due process.
A. The collateral order doctrine
A motions panel has already decided that the collateral order doctrine
affords appellate jurisdiction to review the disentitlement order in this case.
Upon our own independent review, we hold that we have jurisdiction under the
collateral order doctrine to review an order disentitling a foreign citizen who has
remained at home abroad—in this case, without evasion, stealth, or concealment.
1. Conclusive determination
It is undisputed (including by the dissent for purposes of this appeal) that
the disentitlement ruling satisfies the first requirement of the collateral order
doctrine: it “conclusively determine[s] the disputed question.” Flanagan, 465
U.S. at 265 (quoting Coopers & Lybrand, 437 U.S. at 468).
12
2. An important issue separate from the merits
Disentitlement is “important”—that is, it is “weightier than the societal
interests advanced by the ordinary operation of final judgment principles.”
Digit. Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 879 (1994).
Disentitlement heavily burdens Bescond’s exercise of the due process right to
defend herself in court. See In re Oliver, 333 U.S. 257, 273 (1948); Holden v.
Hardy, 169 U.S. 366, 390 (1898); Hovey v. Elliott, 167 U.S. 409, 417 (1897). As long
as she is disentitled, she cannot mount a defense unless she travels to the United
States, thereby risking pre-trial detention and trial in a foreign country and
causing an extended absence that could jeopardize her career and would cut off
her income (which, incidentally, is the sole support of her family). These
burdens are especially weighty in view of France’s non-extradition policy; as far
as her home country is concerned, Bescond has no obligation to appear in the
United States. Cf. In re Hijazi, 589 F.3d 401, 407–08 (7th Cir. 2009) (reasoning that
because a foreign defendant was “under no obligation to travel to the United
States,” mandamus was justified to compel a ruling on motions to dismiss). On
the other hand, if she remains in France, she has no opportunity to contest the
charges against her and will live indefinitely with the imputation of being a
13
fugitive (bad enough for anyone, and ruinous for a banking executive). In this
case, disentitlement thus imposes a penalty for staying home.
Disentitlement is a sanction “most severe.” Degen v. United States, 517
U.S. 820, 828 (1996). In Degen, the Supreme Court considered a district court’s
inherent power to disentitle a claimant in a civil forfeiture suit. See id. at 821. At
stake was the “right to a hearing to contest the forfeiture of . . . property, a right
secured by the Due Process Clause.” Id. at 822. The Court cautioned against
“the harsh sanction of absolute disentitlement.” Id. at 827. 3 A fortiori the
sanction is harsh when the due process right at stake is to defend liberty; so the
issue is important. The severity of disentitlement is sharpened here because
disentitlement has been applied to bar Bescond’s challenge to the CEA’s
extraterritoriality, that is, whether the law she is alleged to have violated can
reach her and her conduct in the first place. Cf. In re Hijazi, 589 F.3d at 411(concluding that a writ of mandamus ordering the district court to rule on the
merits of a motion to dismiss an indictment was appropriate when the foreign
defendant “raise[d] serious questions about the reach of U.S. law,” and “there
[was] reason to believe that [the] case raise[d] delicate foreign relations issues”).
3Congress subsequently permitted disentitlement in forfeiture cases by statute.
See 28 U.S.C. § 2466.
14
Bescond’s right to defend against criminal charges is no less important
than the interests implicated in other kinds of cases in which interlocutory
review is available. A collateral order denying a motion to reduce bail is
immediately appealable: the “traditional right to freedom before conviction . . .
serves to prevent the infliction of punishment prior to conviction.” Stack v.
Boyle, 342 U.S. 1, 3–4, 6 (1951). And the “liberty interest” jeopardized by an
order of commitment also supports interlocutory review. United States v. Gold,
790 F.2d 235, 239 (2d Cir. 1986). The penalty that disentitlement imposes prior to
conviction, and the threat that it poses to the right to defend liberty, are just as
important. 4
The dissent posits that a foreign citizen such as Bescond enjoys the right to
due process only on U.S. soil. It cites Agency for International Development v.
Alliance for Open Society International, Inc., 140 S. Ct. 2082 (2020), which held
that “foreign organizations operating abroad . . . possess no rights under the First
Amendment,” id. at 2087. But Bescond is not a free-floating foreigner invoking
4The dissent says that we “have more often [than not] declined invitations to
create ever more appealable collateral orders,” Dissent at 4—an assertion
supported by a paucity of citations. That says nothing about whether we should
entertain this appeal. The dissent treats the collateral order doctrine as a series of
watertight “exception[s]” on a “list.” Id. at 5. In fact, the only category is the set
of cases that satisfy the doctrine’s three requirements.
15
the jurisdiction of our federal courts to vindicate a Constitutional right. It is the
government that invoked such jurisdiction when it pursued indictment; Bescond
is a defendant in a U.S. criminal court. As such, she is not without rights. If the
right to due process does not attach until Bescond travels to the United States, it
will have been infringed beyond remedy as soon as the right attaches.
Disentitlement also satisfies the requirement that issues for interlocutory
review be completely separate from the merits of the underlying criminal action.
The question is whether disentitlement is “collateral” to Bescond’s “guilt or
innocence of the charges against [her].” Gold, 790 F.2d at 238. In Bescond’s case,
disentitlement has nothing to do with her guilt or innocence: it bears not on
whether she violated the CEA, but rather on her ability to defend herself. See id.(concluding that a defendant’s competence to stand trial was “entirely separate”
from the issue of whether he committed the alleged crime, and therefore suitable
for immediate appellate review).
Accordingly, the disentitlement ruling “resolve[s] an important issue
completely separate from the merits of the action.” Flanagan, 465 U.S. at 265(quoting Coopers & Lybrand, 437 U.S. at 468).
16
3. Effectively unreviewable post-judgment
Disentitlement is effectively unreviewable on appeal from a final
judgment. Id. (quoting Coopers & Lybrand, 437 U.S. at 468). This “third prong
of the [collateral order] test is satisfied only where the order at issue involves ‘an
asserted right the legal and practical value of which would be destroyed if it
were not vindicated before trial.’” Midland Asphalt Corp. v. United States, 489
U.S. 794, 799 (1989) (quoting United States v. MacDonald, 435 U.S. 850, 860
(1978)). Bescond’s right to mount a defense can be vindicated now or never. If
she remains in France—as France entitles her to do—she will never stand trial;
naturally, she will have no opportunity to appeal and alleviate the damage to her
life and reputation. See Gold, 790 F.2d at 239 (“[T]here may never be a criminal
trial if the defendant is never found competent to stand trial; in this instance,
there would be no appellate review.”). Alternatively, if she succumbs to the
pressure of disentitlement and appears in the United States, an appeal could not
remedy “the very harm that [s]he seeks to avoid.” Sell v. United States, 539 U.S.
166, 177 (2003); see Gold, 790 F.2d at 239. Even acquittal would not “undo th[e]
harm.” Sell, 539 U.S. at 177; see Gold, 790 F.2d at 239.
17
4. Out-of-circuit views
The Sixth and Eleventh Circuits have ruled that they lacked jurisdiction to
hear interlocutory appeals from rulings that disentitled fugitives. (The
government erroneously contends that we, too, have so held. 5) Respectfully, we
disagree.
In United States v. Shalhoub, the Eleventh Circuit reasoned that “absent
the assertion of a right not to be tried or the assertion of a right akin to the right
against excessive bail, a defendant must accept the burdens of trial and
sentencing before he obtains appellate review of an adverse ruling.” 855 F.3d
1255, 1261 (11th Cir. 2017). While “[t]he right against excessive bail is a
5 The dissent invokes United States v. Golden—decided in 1956—which
disclaimed jurisdiction to review an order that denied a motion to dismiss when
the defendant lived abroad and failed to appear. 239 F.2d 877, 878–79 (2d Cir.
1956). That challenge to disentitlement, raised in a reply brief, was rejected in
four words and without explanation: “[t]his position i[s] untenable.” Id. at 879.
We do not regard Golden as foreclosing today’s decision, which follows the
reasoned analysis of subsequent cases.
The dissent posits that four words “may be all it takes” to set a precedent
that forecloses interlocutory review here. Dissent at 5. But the four words
contain no analysis, and there were other sufficient grounds for decision. See
Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998) (explaining that an issue
raised for the first time in a reply brief is not properly presented for appellate
review). Less is more; but nothing is still nothing.
18
constitutional right,” it continued, “[a defendant] has no right to avoid being
labelled a fugitive.” Id.However, Bescond does assert a constitutional right: the right to defend
herself in court. And neither the Supreme Court nor this Court has categorically
limited the collateral order doctrine to the right not to be tried and the right
against excessive bail. For example, an order requiring the involuntary
administration of antipsychotic drugs is immediately appealable because of the
“privacy and security” interests at stake. Sell, 539 U.S. at 176–77 (quoting
Winston v. Lee, 470 U.S. 753, 759 (1985)). So, too, is “an order transferring a
juvenile to adult status” in a criminal proceeding, as it deprives the defendant of
such “legal and practical benefits” as the sealing of records and pre-trial
detention in settings favorable to adult prison. United States v. Doe, 49 F.3d 859,
865 (2d Cir. 1995).
In United States v. Martirossian, the Sixth Circuit reasoned that the
“[c]onsiderable overlap” between the issues of whether the defendant was a
fugitive, and whether the relevant criminal statute applied to foreigners,
counseled against interlocutory review. 917 F.3d 883, 888 (6th Cir. 2019). True,
Bescond challenges the CEA’s assertedly extraterritorial application—a concept
19
that, broadly speaking, overlaps with fugitivity. But the issues are distinct. In
reviewing extraterritoriality, we consider the CEA’s text. See RJR Nabisco, Inc. v.
Eur. Cmty., 136 S. Ct. 2090, 2101 (2016). In reviewing disentitlement, we ask
whether Bescond meets the definition of a “fugitive” and consider whether
disentitling her would serve the purposes of the doctrine. Empire Blue Cross &
Blue Shield v. Finkelstein, 111 F.3d 278, 280–81 (2d Cir. 1997). Although
Bescond’s location abroad is relevant to both analyses, see RJR Nabisco, 136 S. Ct.
at 2101; Finkelstein, 111 F.3d at 280, we can—and do—decide one issue without
deciding the other.
The Sixth Circuit rejected Martirossian’s argument that fugitivity would be
unreviewable on appeal from a final judgment, but conceded (fatally) that a
defendant’s fugitive status “become[s] moot” once “he submits to the jurisdiction
of the federal courts.” Martirossian, 917 F.3d at 888.
We are persuaded that we may properly review the disentitlement ruling
as a collateral order. 6
6The dissent casts our holding in broad terms, so that it is the dissent rather than
this opinion that would provoke the abuses that the dissent foreshadows.
Concerned about how we will deal with future foreign defendants abroad, the
dissent conjures up cybercriminals and villains in caves. But whether in a cave
or behind a screen, such bad actors have concealed themselves and are thus
easily distinguishable from Bescond. In any event, every disposition leaves
20
B. Pendent appellate jurisdiction
Does jurisdiction to review the disentitlement ruling empower us to
review the alternative rulings on the merits of extraterritoriality and due
process? It does not.
Under the doctrine of pendent appellate jurisdiction, an interlocutory
appeal of one ruling permits us “to exercise jurisdiction over other, otherwise
unappealable interlocutory decisions, where such rulings are ‘inextricably
intertwined’ with” or “‘necessary to ensure meaningful review’ of the appealable
order.” Atlantica Holdings, Inc., 813 F.3d at 116–17 (quoting Myers, 624 F.3d at
552). Pendent appellate jurisdiction is available only in “narrowly
circumscribed” circumstances, “in order to avoid ‘encourag[ing] parties to parlay
[reviewable] collateral orders into multi-issue interlocutory appeal tickets,’
thereby undermining the general rule that an appeal may not be taken until a
final judgment has been entered.” Id. at 117 (first alteration in original) (quoting
Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 49–50 (1995)). “[T]he exercise of
pendent appellate jurisdiction is discretionary,” and “we will only exercise [such
jurisdiction] in exceptional circumstances.” Id. (quoting Myers, 624 F.3d at 553);
unresolved questions that may arise in cases that follow in its wake. That is why
we turn on the lights.
21
see Bolmer v. Oliveira, 594 F.3d 134, 141 (2d Cir. 2010) (“[P]endent appellate
jurisdiction should be exercised sparingly, if ever.” (quoting Mancuso v. N.Y.
State Thruway Auth., 86 F.3d 289, 292 (2d Cir. 1996))).
These circumstances are insufficiently exceptional. Bescond asserts that
review of the merits of extraterritoriality and due process is necessary to ensure
meaningful review of her disentitlement. But her argument at best is that the
concepts of extraterritoriality and due process would be enlightening because
they illustrate why she is justified in remaining abroad. This is not enough. See
Myers, 624 F.3d at 553–54 (explaining that, even when two independent issues
are factually or legally similar, pendent appellate jurisdiction does not lie when
“resolution of the non-appealable order would require us to conduct an inquiry
that is distinct from and ‘broader’ than the inquiry required to resolve solely the
issue over which we properly have appellate jurisdiction” (quoting Britt v.
Garcia, 457 F.3d 264, 273 (2d Cir. 2006))). Not incidentally, jurisdiction under the
collateral order doctrine to review the disentitlement ruling depends, in part, on
its separateness from the merits of extraterritoriality and due process.
22
Accordingly, we decline to exercise pendent appellate jurisdiction to
review the alternative rulings on the merits. 7
II
The sole issue that we have jurisdiction to review is the application of the
fugitive disentitlement doctrine. The doctrine “applies only to fugitives from
justice.” Finkelstein, 111 F.3d at 281. So in order to disentitle a litigant, a court
must first determine that the litigant is a fugitive. The court may then exercise
discretion to disentitle the fugitive—but only if doing so would serve the
doctrine’s objectives. See id. at 280. We hold that Bescond is not a fugitive, and
that, even if she were, the district court abused its discretion in concluding that
disentitlement was justified.
A. Fugitivity
The issue of whether Bescond meets the definition of a “fugitive” is
reviewed de novo. Collazos v. United States, 368 F.3d 190, 195 (2d Cir. 2004).
The ordinary meaning of the term “fugitive” does not describe Bescond. A
7We have no need to decide the correctness of the government’s assertion that
we can never exercise pendent jurisdiction in a criminal case.
23
fugitive is “[s]omeone who flees or escapes; a refugee,” or “[a] criminal suspect
or a witness in a criminal case who flees, evades, or escapes arrest, prosecution,
imprisonment, service of process, or the giving of testimony, esp[ecially] by
fleeing the jurisdiction or by hiding.” BLACK’S LAW DICTIONARY (11th ed. 2019).
Fugitivity implies some action by Bescond to distance herself from the
United States or frustrate arrest. Bescond took no such action.
As the district court recognized, Bescond is not a fugitive under either of
the two categories at common law: (1) traditional fugitives and (2) constructive-
flight fugitives. A traditional fugitive is “[a] person who, having committed a
crime, flees from [the] jurisdiction of [the] court where [a] crime was committed
or departs from his usual place of abode and conceals himself within the
district.” Finkelstein, 111 F.3d at 281 (alterations in original) (quoting BLACK’S
LAW DICTIONARY (5th ed. 1979)). Bescond has neither fled nor concealed herself.
Nor is Bescond a constructive-flight fugitive: a person “who allegedly
committed crimes while in the United States but who w[as] outside the
country—for whatever reason—when [she] learned that [her] arrest[] w[as]
sought and who then refused to return to the United States in order to avoid
prosecution.” Collazos, 368 F.3d at 199. Bescond was not in the United States
24
while allegedly committing the charged conduct. See In re Hijazi, 589 F.3d at 412(The fugitive disentitlement doctrine “does not apply . . . [to a defendant who]
has never been in the country, . . . has never set foot in Illinois, and . . . owns no
property in the United States.”). Nor is she refusing to return to the United
States to avoid prosecution; she simply remains at home, as her home country
permits her to do. So she does not qualify as a constructive-flight fugitive.
In forfeiture cases, Congress has extended fugitive status to persons who
were not in the United States to begin with—those who “decline[] to enter . . . the
United States to submit to its jurisdiction” or “otherwise evade[] the jurisdiction
of the court in which a criminal case is pending against [them.]” 28 U.S.C. §
2466(a)(1)(B)–(C); Collazos, 368 F.3d at 199–200. This extension is justified for a
reason that fits the forfeiture context specifically:
the unseemly spectacle . . . of a criminal defendant who, facing both
incarceration and forfeiture for his misdeeds, attempts to invoke
from a safe distance only so much of a United States court’s
jurisdiction as might secure him the return of alleged criminal
proceeds while carefully shielding himself from the possibility of a
penal sanction.
Collazos, 368 F.3d at 200. But, as this is not a forfeiture case, the forfeiture statute
does not apply.
25
In short, Bescond is not a fugitive under existing law. Cf. Gao v. Gonzales,
481 F.3d 173, 176–77 (2d Cir. 2007) (“[T]he ‘paradigmatic object of the doctrine is
the convicted criminal who flees while his appeal is pending.’” (quoting
Antonio-Martinez v. I.N.S., 317 F.3d 1089, 1092 (9th Cir. 2003))); United States v.
Awadalla, 357 F.3d 243, 246 (2d Cir. 2004) (“Because Awadalla absconded after
challenging his judgment of conviction in this Court, there is no doubt that we
have the authority to dismiss his appeal.”); United States v. Morgan, 254 F.3d
424, 426–27 (2d Cir. 2001) (holding that the district court properly disentitled a
criminal defendant who fled the United States after pleading guilty and before
sentencing); Finkelstein, 111 F.3d at 281–82 (concluding that litigants who failed
to comply with bench warrants and appear for depositions, whose whereabouts
were unknown, and who faced “an immense judgment” were fugitives); Bar-
Levy v. U.S. Dep’t of Just., 990 F.2d 33, 35 (2d Cir. 1993) (“[T]he alien who is a
fugitive from a deportation order should ordinarily be barred by his fugitive
status from calling upon the resources of the court to determine his claims.”).
Although we express no view as to its merits, it is telling that Bescond
raises a nonfrivolous extraterritoriality claim—especially in view of our decision
in Prime International Trading, Ltd. v. BP P.L.C., 937 F.3d 94 (2d Cir. 2019), cert.
26
denied, No. 19-1141, 2020 WL 3146710 (June 5, 2020). 8 Labeling a foreign
defendant a fugitive can be enough to coerce submission to U.S. jurisdiction
wholly regardless of whether the charged statute reaches individuals outside our
territory. That result is in tension with principles that underlie the presumption
against extraterritoriality. See RJR Nabisco, 136 S. Ct. at 2100 (providing that the
presumption “serves to avoid the international discord that can result when U.S.
law is applied to conduct in foreign countries” and “reflects the more prosaic
‘commonsense notion that Congress generally legislates with domestic concerns
in mind’” (quoting Smith v. United States, 507 U.S. 197, 204 n.5 (1993))). And if
our law does not reach Bescond or her conduct, can it be said that she is in flight
from it?
The district court acknowledged the tension, but reasoned that it could be
alleviated in the discretionary ruling on whether to apply the doctrine: “[w]ere a
court to identify any abuse or prosecutorial overreaching, it could decline to
apply disentitlement and reach the merits of a defendant’s motion even if the
defendant could be classified as a fugitive.” Sindzingre, 2019 WL 2290494, at *7
n.5. But if the assertion of prosecutorial overreach is premised on
8We decided Prime International after the district court issued its order in this
case.
27
extraterritoriality, there may be no opportunity to detect that overreach precisely
because the fugitive disentitlement doctrine preempts consideration of the
merits.
Bescond’s presence abroad is unrelated to the American prosecution. She
is a French citizen, living in France, where she supports a family, and is
employed in a legitimate line of work. A different result may obtain if a person’s
presence abroad is in any part covert or suspect: a hideout, sanctuary, or escape
from the reach of law. Arguably to the contrary are the Sixth Circuit’s decision in
Martirossian, 917 F.3d at 890, and In re Kashamu, 769 F.3d 490, 493 (7th Cir.
2014). But see In re Hijazi, 589 F.3d at 412–13. But if the doctrine were to be
expanded to reach someone such as Bescond, who stays at home abroad, without
concealment or evasion, Congress, not the courts, should weigh the competing
issues and values and determine whether such an expansion is warranted. As
observed in Degen: “Courts invested with the judicial power of the United States
have certain inherent authority to protect their proceedings and judgments in the
course of discharging their traditional responsibilities,” including disentitling
fugitive defendants, but “[t]he extent of these powers must be delimited with
care, for there is a danger of overreaching when one branch of the Government,
28
without benefit of cooperation or correction from the others, undertakes to define
its own authority.” 517 U.S. at 823.
B. Disentitlement
We go on to review the discretionary ruling of disentitlement because (1) it
is closely related, a ruling on disentitlement being the business end of a fugitivity
finding; and (2) courts faced with close questions of fugitivity may prefer to
decide on a question confided to discretion. In this case, even if Bescond were a
fugitive, disentitlement was improper.
We review disentitlement for abuse of discretion. Morgan, 254 F.3d at 426.
A court abuses its discretion when it:
(1) bases its decision on an error of law or uses the wrong legal
standard; (2) bases its decision on a clearly erroneous factual
finding; or (3) reaches a conclusion that, though not necessarily the
product of a legal error or a clearly erroneous factual finding, cannot
be located within the range of permissible decisions.
Klipsch Grp., Inc. v. ePRO E-Com. Ltd., 880 F.3d 620, 627 (2d Cir. 2018) (citation
omitted).
Disentitlement serves four purposes: “1) assuring the enforceability of any
decision that may be rendered against the fugitive; 2) imposing a penalty for
29
flouting the judicial process; 3) discouraging flights from justice and promoting
the efficient operation of the courts; and 4) avoiding prejudice to the other side
caused by the defendant’s escape.” Finkelstein, 111 F.3d at 280. Courts exercise
their discretion to apply the doctrine “[b]earing these objectives in mind.” 9 Id.Here, the conclusion that disentitlement furthered these four objectives was an
abuse of discretion.
As to the enforceability of decisions, disentitlement is a disproportionately
severe response to Bescond’s absence and therefore too harsh a means of
ensuring mutuality in the litigation. See Degen, 517 U.S. at 823–24 (“Principles of
deference counsel restraint in resorting to inherent power and require its use to
be a reasonable response to the problems and needs that provoke it.” (citations
omitted)). It cannot be said that Bescond fled the district court’s jurisdiction, let
alone that she did so to seize an unfair advantage or game the system. Cf. Gao,
481 F.3d at 177 (“The gravamen of [the] petition is the posture of ‘heads I win,
tails you’ll never find me.’” (quoting Antonio-Martinez, 317 F.3d at 1093)). Other
than to avoid a ruinous designation as a fugitive, Bescond has no reason to travel
here: it is not shown that she has residence, immigration status, job, or family in
9 Other factors may be considered. See Nen Di Wu, 646 F.3d at 136.
30
this country, and she allegedly committed the charged offense entirely from
abroad. “[D]isentitlement is too blunt an instrument for” a foreign defendant in
Bescond’s circumstances. Degen, 517 U.S. at 828.
As to whether Bescond is “flouting the judicial process,” as the district
court found she is, Sindzingre, 2019 WL 2290494, at *8, there is no basis for a
finding that Bescond is exhibiting disrespect for U.S. law. See Gao, 481 F.3d at
176 (“[The] reasons why the inherent power of the court to manage its own
affairs should be used to dismiss an appeal of a party who is a fugitive . . .
include . . . the need for a sanction to redress the fugitive’s affront to the dignity
of the judicial process.”). All Bescond has done is stay home, where she
remained during the allegedly criminal scheme, and where her government
permits her to live freely. Her reasons for litigating from home are legitimate
and fair.
As to the discouragement of flight: given Bescond’s circumstances, there
exists no cohort of fugitives who would perceive an adjudication of her motions
as inducement or inspiration to flee the jurisdiction of our courts. Bescond was
never here; her charged offense is financial, diffuse, and novel, and it affected the
United States—allegedly—only through a chain of other actors in other
31
countries; she did not act for a criminal organization; she was in a legitimate line
of work, as a banking executive; and her home country protects her from
extradition. It cannot be said that an adjudication of Bescond’s motions on the
merits “would eradicate any incentive for [others] to comply with an arrest
warrant, submit to a court’s jurisdiction, and respond to the Government’s
allegations.” Sindzingre, 2019 WL 2290494, at *8. “[W]e question whether a
slight general deterrence effect can outweigh the countervailing harm to the
judicial process, which seeks to resolve cases on the merits whenever possible.”
Nen Di Wu, 646 F.3d at 137.
Finally, as to prejudice, the district court was over-solicitous of the
government’s claim. The court concluded that “Bescond’s failure to appear
prejudices the Government’s ability to locate witnesses and present evidence at
trial.” Sindzingre, 2019 WL 2290494, at *9. However, the prejudice to consider is
that “caused by the defendant’s escape”—of which none is identified.
Finkelstein, 111 F.3d at 280. The government has no apparent need to acquire
new evidence related to Bescond’s period of absence. See Nen Di Wu, 646 F.3d at
138 (concluding that the prejudice factor did not support disentitlement when
the petitioner did not “premise[] his claim to relief entirely on events that
32
occurred during the period of his fugitivity, thereby making the government
rebut new facts in order to defeat his petition on the merits”). Concern that
existing evidence would grow stale may arise in some cases; but here, it is odd,
given that by the time the indictment was filed, about six to seven years had
already elapsed since the charged conduct.
The district court did not consider the countervailing prejudice to Bescond.
Disentitlement enables the government to coerce Bescond’s presence in court by
imposing financial, reputational, and family hardship regardless of her guilt or
innocence, and regardless of whether the indictment charges violations of a
statute that applies extraterritorially. So long as the government surmounts the
low threshold of securing an indictment, any soul on the planet may be deemed
a fugitive, and disentitlement would then bar a challenge to extraterritoriality
from abroad, requiring the foreigner to leave home and face arrest and detention
to have any hope of securing dismissal. Such a result contravenes the rationales
that underly disentitlement and assigns no weight to the sovereignty of other
nations.
Discretion depends on circumstances. See Nen Di Wu, 646 F.3d at 138
(“Where the law calls for the exercise of discretion, facts matter, and cases cannot
33
be lumped together on account of formal similarities.”). In Bescond’s case, given
her innocent residence as a foreign citizen abroad, given the nature of the
charged offense and her remoteness from the alleged harm that it caused, given
her line of work, and given her nonfrivolous challenge to the extraterritoriality of
the criminal statute, the exercise of discretion to disentitle her was an abuse.
CONCLUSION
For the foregoing reasons, the order disentitling Bescond is reversed; the
case is remanded for further proceedings to consider or reconsider the merits of
her motions to dismiss; and the appeal is dismissed insofar as it seeks review of
the alternative rulings on extraterritoriality and due process.
34
DEBRA ANN LIVINGSTON, Chief Judge, concurring in part and dissenting in part:
The Court’s decision today is a victory for Muriel Bescond. But our Circuit’s
law is a silent loser. In its effort to remedy what the majority perceives as a case of
prosecutorial overreach, the majority creates a new class of interlocutory appeals
that will greatly disserve the interests of justice when applied to the substantial
number of cases in which foreign-based defendants are charged with violating our
laws and harming our people. In doing so, the majority departs from our sister
circuits to create a novel rule of appellate jurisdiction. Even if I thought the
majority’s approach to the fugitive disentitlement doctrine were sound—and I do
not—I cannot conclude that Congress has given us appellate jurisdiction to
consider interlocutory appeals of fugitive disentitlement orders. I must therefore
respectfully dissent from the majority’s conclusion that we may review such an
order today. 1
I
As my colleagues do, I start with the statute that governs our appellate
jurisdiction. It states, in relevant part, that “[t]he courts of appeals . . . shall have
1 Having concluded that we lack appellate jurisdiction entirely, I agree with the
majority that we lack pendent appellate jurisdiction to review Bescond’s additional
arguments. Maj. Op. 21–23.
1
jurisdiction of appeals from all final decisions of the district courts of the United
States.” 28 U.S.C. § 1291. This rule, known as the final judgment rule, is “crucial to
the efficient administration of justice.” Flanagan v. United States, 465 U.S. 259, 264
(1984). “Finality as a condition of review is an historic characteristic of federal
appellate procedure” and Congress, “from the very beginning has, by forbidding
piecemeal disposition on appeal of what for practical purposes is a single
controversy, set itself against enfeebling judicial administration.” See Cobbledick v.
United States, 309 U.S. 323, 324–25 (1940) (noting that a version of the final
judgment rule can be traced back to the first Judiciary Act).
The interest in prohibiting review of non-final orders, as the Supreme Court
observed in 1940, is “especially compelling in the administration of criminal
justice” where “encouragement of delay is fatal to the vindication of the criminal
law.” Id. at 325. The policy arguments in favor of the final judgment rule in
criminal cases, moreover, have only become stronger over time, as the criminal
dockets of the federal courts have expanded. See Flanagan, 465 U.S. at 264. The
prompt resolution of criminal cases benefits both the prosecution, which
otherwise, as time passes, may find its “ability to meet its burden of proof . . .
2
greatly diminish,” and also criminal defendants, who generally “have a strong
interest in speedy resolution of the charges . . . .” Id. at 264.
The collateral order doctrine, first articulated in Cohen v. Beneficial Indus.
Loan Corp., 337 U.S. 541 (1949), is a narrow exception to the final judgment rule for
a “limited category of cases falling within” its strictures. Flanagan, 465 U.S. at 265(quoting United States v. Hollywood Motor Car Co., 458 U.S. 263, 265 (1982)). Under
this doctrine, courts of appeals may review orders only when they “(1)
conclusively resolve a disputed question that (2) is an important issue completely
separate from the merits of the action, and that (3) would be effectively
unreviewable on appeal from a final judgment.” United States v. Magassouba, 544
F.3d 387, 400 (2d Cir. 2008). “Because of the compelling interest in prompt
[criminal] trials,” this exception is applied “with the utmost strictness in criminal
cases.” Flanagan, 465 U.S. at 265.
To date, in the 70-plus years since Cohen was decided, the Supreme Court
has recognized only four types of orders in criminal cases that satisfy these
demanding requirements: orders denying motions to dismiss on double jeopardy
grounds; orders denying such motions brought under the Speech or Debate
Clause; orders denying motions to reduce bail; and orders involving the forced
3
administration of antipsychotic medication. See Flanagan, 465 U.S. at 265–66
(listing the first three of these exceptions); see also Sell v. United States, 539 U.S. 166,
176–77 (2003) (recognizing the fourth). This is a short list. And as Judge Sutton
recently observed, “the Supreme Court has cautioned us time, time, and time
again not to expand the collateral order club’s ‘selective . . . membership.’” United
States v. Martirossian, 917 F.3d 883, 887 (6th Cir. 2019) (alteration in original)
(citations omitted) (quoting Will v. Hallock, 546 U.S. 345, 350 (2006)).
True, this Court has gone beyond these exceptions. See, e.g., United States v.
Doe, 49 F.3d 859, 865 (2d Cir. 1995) (holding that order allowing the government
to try a juvenile as an adult is immediately appealable). Yet we, too, have more
often declined invitations to create ever more appealable collateral orders. See, e.g.,
United States v. Robinson, 473 F.3d 487, 490–92 (2d Cir. 2007) (holding that the
“district court’s denial of a motion to strike a death penalty notice” is not an
appealable collateral order); United States v. Aliotta, 199 F.3d 78, 81 (2d Cir. 1999)
(holding that motion to dismiss an indictment on double jeopardy grounds after a
guilty plea is not reviewable). Indeed, in a case much like Bescond’s, we held that
the collateral order doctrine did not permit review of the denial of a pretrial motion
to dismiss an indictment charging failure to report for induction even though the
4
defendant affirmed: (1) that he was neither a citizen, national, nor resident alien of
the United States subject to the Universal Military Training and Service Act; (2)
that the government had papers in its possession showing as much; and (3) that
he should not have to travel thousands of miles from his home in Thailand in order
to have the indictment quashed. United States v. Golden, 239 F.2d 877, 879–81 (2d
Cir. 1956). The majority dismisses Golden in a footnote, pointing out that we
rejected the applicability of the doctrine “in four words.” Maj. Op. at 18 n.5. But
that may be all it takes when there’s no authority to the contrary and the Supreme
Court has so often made clear its “stern reluctance to allow interlocutory review
in criminal cases.” United States v. Wallach, 870 F.2d 902, 906 (2d Cir. 1989)
(discussing Supreme Court authority); see also Hollywood Motor Car Co., 458 U.S. at
270 (noting threat of “ever-multiplying exceptions” to final judgment rule in
criminal cases).
Nevertheless, the majority today adds one more exception to the list,
holding that this Court has jurisdiction under the collateral order doctrine to
review orders “disentitling a foreign citizen who has remained at home abroad.”
Maj. Op. at 12. In doing so, it creates a split with our sister circuits who have held
fugitive disentitlement orders—and specifically involving, as here, a foreign
5
citizen located abroad—are not immediately appealable. See Martirossian, 917 F.3d
at 887; United States v. Shalhoub, 855 F.3d 1255 (11th Cir. 2017). For the reasons set
forth below, our sister circuits have the better of this argument. We thus err in
creating this circuit split and should instead conclude that we lack appellate
jurisdiction to review the district court’s order.
II
A
As discussed, an order must satisfy three conditions to be eligible for
interlocutory review as a collateral order: (1) it must conclusively resolve a
disputed question; (2) that question must be important and completely separate
from the merits; and (3) that question must be unreviewable as part of an appeal
from a final judgment. Magassouba, 544 U.S. at 400.
The majority holds that this Court has jurisdiction “to review an order
disentitling a foreign citizen who has remained at home abroad—in this case,
without evasion, stealth, or concealment.” Maj. Op. at 12. But at the very start—
before even turning to the narrow circumstances in which an interlocutory order
qualifies as collateral—the majority’s very framing of the “disputed question”
6
opens the door to the piecemeal appellate adjudication of criminal cases brought
against foreign-based defendants who are not citizens of the United States.
To be sure, the majority’s holding suggests that it does not, in effect, entitle
each and every foreign citizen indicted in federal court to the substantial delay
associated with consideration of a fugitive disentitlement order so long as the
defendant is outside the United States and declines to appear. But this is an
illusion. Because the majority is wholly silent on which foreign defendants its
formula covers and how this formula is to apply, its new exception to the final
judgment rule portends significant future delays in many criminal cases involving
foreign-based defendants—precisely the sort of consequence Congress sought to
avert with the final judgment rule.
Consider a foreign citizen charged with committing a cybercrime in the
United States. Does such a person “remain[] at home abroad,” entitling him to
review of a disentitlement order, so long as the indictment affirmatively alleges
that he acted from outside the United States? If the indictment is silent or unclear
on this question, may he obtain discovery to pursue it? What if he regularly
visits—even owns property in the United States—but is not alleged to have
himself committed any act here in connection with the crime? Does such a person
7
“remain at home”—a result which would be in some tension with Congress’s
judgment in 28 U.S.C. § 2466 that a district court may properly disentitle an
individual from pursuing a claim in a civil forfeiture action that is proceeding in
parallel to a pending criminal case when that person has “decline[d] to enter or
reenter the United States to submit to its jurisdiction.” And what if our
hypothetical defendant commissions others to undertake serious crimes within the
United States? Does such a person “remain at home”? All this is left for resolution
in future cases that likely will come to us through dilatory interlocutory appeals.
Moreover, it is not even clear, to me, that the majority’s new exception to
the final judgment rule will remain limited to fugitive disentitlement orders. The
majority says that foreign citizens who “remain at home” are entitled to collateral
review of a district court’s disentitlement order because, inter alia, the order
unconstitutionally burdens their right to defend themselves by “impos[ing] a
penalty for staying home.” Maj. Op. at 14. This is incorrect, as discussed below.
But starting from this faulty premise, what happens in the event that a fugitive
disentitlement order is, as here, overturned on appeal and the district court, on
remand, determines that a motion to dismiss the indictment should be denied on
the merits—or that such a motion cannot be decided before trial? The trial cannot
8
proceed in the defendant’s absence. See Crosby v. United States, 506 U.S. 255, 262
(1993) (noting that Rule 43 of the Federal Rules of Criminal Procedure “prohibits
the trial in absentia of a defendant who is not present at the beginning of the trial”);
see also Degen v. United States, 517 U.S. 820, 826 (1996) (noting that where dual
citizen of U.S. and Switzerland remained in Switzerland and had not returned to
face drug charges, “[t]he criminal trial cannot begin until he returns”). But such a
defendant will surely claim that the harms visited by virtue of the pending
indictment are no less severe than the fugitive disentitlement order itself—so that
interlocutory review of his motion to dismiss is also imperative, lest he be
penalized for staying home. Given the reasoning in the majority opinion, by what
principle would this argument be rejected? The Supreme Court warned in
Hollywood Motor Car Co., that when the collateral order doctrine is misunderstood,
the “policy against piecemeal appeals in criminal cases” is in constant danger of
being “swallowed by ever-multiplying exceptions.” 458 U.S. at 270. Here, the
majority’s misunderstanding of the doctrine, as next set forth, sets the stage for
this very result.
9
B
Regardless of how the issue is framed—whether a foreign citizen remains at
home (with or without evasion), tours the world, or hides in a cave, we lack
appellate jurisdiction to consider a fugitive disentitlement order under the
collateral order doctrine. To be sure, there may be circumstances in which such
orders may properly be the subject of mandamus relief. But as to the collateral
order doctrine’s three-part test, the district court’s order satisfies neither the
second nor third requirements. 2 Bescond’s case presents neither an important
issue completely separate from the merits nor an issue that is effectively
unreviewable on appeal from a final judgment. Accordingly, the majority errs in
entertaining this appeal.
2 In his opinion for the Sixth Circuit, Judge Sutton suggested that fugitive
disentitlement orders might not even meet the first of the three requirements. United
States v. Martirossian, 917 F.3d 883, 887 (6th Cir. 2019). Judge Sutton reasoned that because
the district court in that case held a motion to dismiss in abeyance until Martirossian
submitted to the jurisdiction of the court, there was no final resolution of the motion. Id.Similarly here, the district court’s determination that Bescond is a fugitive and should be
disentitled would no doubt be revisited if Bescond were to appear. The government has
conceded, however, that the question of whether Bescond is a fugitive was finally
resolved by the district court. See 15A Charles A. Wright, Arthur R. Miller, & Edward H.
Cooper, Federal Practice & Procedure § 3911.1 (2d ed. Supp. 2020) (“[A] disposition
ordinarily should be held final for purposes of collateral order appeal when the district
judge believes that it has been finally resolved for purposes of whatever proceedings
remain . . . .”). Accordingly, I do not further address this point.
10
1
The majority asserts that the order here satisfies the second requirement of
the collateral order test—that the issue appealed be an important issue completely
separate from the merits—on the theory that “[d]isentitlement heavily burdens
Bescond’s exercise of the due process right to defend herself in court.” Maj. Op. at
13. I disagree. As the Supreme Court has explained, a question is “important” for
the purposes of the collateral order doctrine when it is “weightier than the societal
interests advanced by the ordinary operation of final judgment principles.” Digit.
Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 879 (1994). It is separate from the
merits when collateral to the issue of guilt or innocence. United States v. Gold, 790
F.2d 235, 238 (2d Cir. 1986). Here, the order fails on both counts.
As to importance, the four appealable collateral orders the Supreme Court
has recognized all protect constitutional rights. 3 The majority, cognizant of this,
argues that disentitlement burdens Bescond’s due process right to defend herself
in court. Maj. Op. at 13. But this is simply incorrect. Bescond is perfectly able to
3And not just any constitutional right will do. See, e.g., United States v. Hollywood
Motor Car Co., 458 U.S. 263, 268–69 (1982) (holding that denial of motion to dismiss based
on claim of prosecutorial vindictiveness is not appealable before trial); United States v.
MacDonald, 435 U.S. 850, 857 (1978) (rejecting argument that claims based on Sixth
Amendment right to speedy trial are immediately appealable).
11
defend herself in court if and when she is subject to the court’s jurisdiction. But no
party has a due process right to insist on that jurisdiction for rulings favorable to
herself while at the same time making clear her refusal to comply with any
unfavorable result. Here, Bescond sought dismissal of the indictment and also
discovery from the government, despite showing no willingness to abide by any
order contrary to her interests. J. App’x at 44. The fugitive disentitlement doctrine
itself exists to prevent this manner of nonmutual litigation. See Gao v. Gonzales, 481
F.3d 173, 176 (2d Cir. 2007).
Nor does the district court labelling Bescond a fugitive raise a due process
concern, much less an “important” one. 4 Bescond has no “more of a freestanding
right not to be labeled a fugitive, than a criminal defendant has a freestanding right
not to be labeled a defendant.” Martirossian, 917 F.3d at 887 (quoting Shalhoub, 885
4 In suggesting otherwise, the majority largely sidesteps the question whether
foreign citizens outside of the United States possess due process rights at all. Yet the
Supreme Court has noted that “it is long settled as a matter of American constitutional
law that foreign citizens outside U. S. territory do not possess rights under the U. S.
Constitution.” Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 140 S. Ct. 2082, 2086
(2020) (emphasis added). Instead, “foreign citizens in the United States may enjoy certain
constitutional rights” including “the right to due process in a criminal trial.” Id. This
authority makes clear that any rights Bescond can claim under the Constitution will
attach only when she travels to the United States to defend herself against the charges
she faces. Nevertheless, even assuming arguendo that the Due Process Clause applies to
Bescond while she remains in France, the interests identified by the majority are
insufficient to provide us with jurisdiction to hear her appeal at this time.
12
F.3d at 1261–62). And even assuming arguendo that deeming her a fugitive
implicates a constitutionally protected interest in her reputation, “‘[w]here a
person’s good name . . . is at stake,’ due process requires only notice and an
opportunity to be heard” and Bescond, like the defendant in Shalhoub, “enjoys a
right to appear in court, to defend [herself] against the indictment, and to clear
[her] name if she prevails.” Shalhoub, 855 F.3d at 1261–62 (quoting Wisconsin v.
Constantineau, 400 U.S. 433, 437 (1971)). 5 Thus, contrary to the majority’s
conclusion, Bescond has failed to raise an issue of importance of more substantial
weight than the societal interests furthered by the final judgment rule.
To be clear, this is not to deny the harms attendant on being charged with
crimes, including, here, the necessity of travel to defend against the charge. But
the argument that this case presents a due process problem proves too much. If
Bescond’s situation raised such a concern, then the entire fugitive disentitlement
doctrine would be on unsure constitutional footing, which it is not. For Bescond
suffers no impairment of her ability to defend herself in court that distinguishes
5 Moreover, Bescond actively litigated the issue of her fugitivity in the district
court, a fact which even further undercuts the majority’s claim that her due process
rights are somehow at stake.
13
her from many other foreign citizens (or, for that matter, Americans) for whom the
majority does not even purport to fashion an exception to the final judgment rule.
Consider a hypothetical defendant alleged to have committed fraud while
on a business trip to the United States who then returns home to France before
being indicted. This defendant, under traditional principles, would qualify as a
fugitive upon his refusal to reenter the United States—and despite any claim on
his part that the allegations in the indictment regarding his conduct in the United
States are untrue. See Collazos v. United States, 368 F.3d 190, 199 (2d Cir. 2004). The
majority does not purport to extend its new exception to the final judgment rule
to this defendant and would not permit him to seek interlocutory review of any
disentitlement determination because he did not “remain at home.”
Bescond, in contrast, is not alleged in the indictment to have herself acted
within the United States as part of the conspiracy with which she is charged. But
the majority offers no explanation—none—how this fact affects her due process
right to present a defense so as to distinguish her disentitlement order from our
hypothetical defendant’s, and thus to establish her order’s importance. The
majority emphasizes the burdens posed by Bescond’s location abroad and
analogizes these burdens to the right against excessive bail and the liberty interest
14
at risk when a court enters an order of commitment. Maj. Op at 13–16. But Bescond
is not detained. Further, any pretrial detention she might be subject to upon arrival
in the United States, just as our hypothetical defendant’s, would be pursuant to
the guarantees of the Constitution, including any permissible appeals of collateral
orders. Maj. Op. at 13. Assuming the majority does not mean to suggest there is a
serious procedural deficiency with our ordinary treatment of defendants who
primarily reside abroad yet commit criminal acts within the United States, it is
difficult to see why Bescond’s interest in avoiding these procedures rises to the
level of importance sufficient to justify an immediate appeal.
The Supreme Court’s decision in Degen does not alter this conclusion. Degen
involved the question whether a district court “may strike the filings of a claimant
in a forfeiture suit and grant summary judgment against him for failing to appear
in a related criminal prosecution.” 517 U.S. at 821. The Court held that
disentitlement in these circumstances was unjustified. Critical to that conclusion,
however, was the Court’s recognition that the claimant’s absence created no risk
of delay or frustration in adjudicating the forfeiture matter or in enforcing the
judgment because “the court’s jurisdiction over the property [was] secure.” Id. at
825. In such circumstances, because “[t]he dignity of a court derives from the
15
respect accorded its judgments,” disentitlement was unnecessary to protect this
“substantial” dignitary interest. Id. at 828. 6 But Degen is not this case. The district
court, on remand, will have no ability to enforce any judgment adverse to Bescond,
even as it is instructed to proceed. Degen thus fails to support the argument that
Bescond’s disentitlement raises an important due process concern.
Moreover, even if Bescond had identified an issue of sufficient importance
to outweigh the substantial societal interests reflected in the final judgment rule,
she has still failed to show that this issue is sufficiently distinct from the merits. To
satisfy the demanding strictures of the collateral order doctrine, an interlocutory
ruling must represent not only an important issue, but one “completely separate
from the merits of the action.” Magassouba, 544 F.3d at 400 (emphasis added). And
here, as in Martirossian, “[c]onsiderable overlap . . . exists between the arguments
underlying [this] interlocutory appeal and the merits of the case.” 917 F.3d at 888.
Martirossian argued that he was not a fugitive from the United States “because he
6 Notably, Congress has since taken the opposite view and granted the district
courts broad authority to disentitle absent claimants in forfeiture cases pending
simultaneously with a criminal prosecution, notwithstanding that judgments against a
res may be enforced in the absence of the claimant. See 28 U.S.C. § 2466. This action by a
coordinate branch itself charged with upholding the Constitution suggests that concerns
about the harshness of disentitlement do not have a constitutional dimension.
16
ha[d] never traveled to the country and his targeted conduct occurred abroad.” Id.For similar reasons, he argued that the money laundering statute that he was
alleged to have violated didn’t apply to him. In such circumstances, the Sixth
Circuit concluded that the issues pressed by Martirossian in his interlocutory
appeal were ”not sufficiently distinct from the merits of the action to warrant mid-
case review” pursuant to the collateral order doctrine. Id. at 887.
So too here. The majority observes that disentitlement “bears not on whether
[Bescond] violated the [Commodities Exchange Act (“CEA”)] [i.e., the merits of the
case], but rather on her ability to defend herself.” Maj. Op. at 16. True, a decision
on disentitlement does not entail a certain resolution of the merits: “[W]e can . . .
decide one issue without deciding the other.” Id. at 21. But there is undeniably
“considerable overlap,” both as to the relevant facts and “in the arguments
underlying” the two issues here, Martirossian, 917 F.3d at 888, so that the
disentitlement issue is not “completely separate” from the merits, as the collateral
order doctrine requires, Magassouba, 544 F.3d at 400.
Bescond argues that she does not qualify as a fugitive from the United States
because she is “a French citizen with virtually no connection to the United States,”
Appellant’s Br. at 1, and the indictment does not charge her with performing any
17
acts within the country. But as in Martirossian, this argument is intertwined with
her argument that the statute she is alleged to have violated—in Bescond’s case,
Section 9(a)(2) of the CEA—does not apply to her and, indeed, that her prosecution
“rests upon an unquestionably impermissible extraterritorial application” of this
provision. Appellant’s Br. at 4. This latter claim goes to the merits, may generally
be incapable of resolution before trial, and should not be decided prematurely in
the context of addressing a defendant’s refusal to appear. 7 As in Martiorossian, “[a]
defendant does not increase his rights to an appeal” of a pretrial motion to dismiss
by declining to appear. Id. at 888.
2
Finally, Bescond has not identified an important issue completely severable
from the merits that is also, as the third requirement of the collateral order doctrine
requires, “effectively unreviewable on appeal from a final judgment.” Magassouba,
544 F.3d at 400. This “test is satisfied only where the order at issue involves ‘an
7 Prime International, relied on by the majority, makes clear that the premature
adjudication of extraterritoriality questions is unwise. It observes that “many cases
present a mixed bag of both domestic and foreign components” and even when a statute
does not apply extraterritorially, the law may still be violated where there is a “domestic
application” of the statute. Prime Int’l Trading, Ltd. v. BP P.L.C., 937 F.3d 94, 102 (2d Cir.
2019), cert. denied, 141 S. Ct. 113 (2020). This inquiry requires courts to “evaluate whether
the domestic activity involved implicates the ‘focus’ of the statute,” an issue that may not
be apparent on the face of the indictment. Id.18
asserted right the legal and practical value of which would be destroyed if it were
not vindicated before trial.’” Midland Asphalt Corp. v. United States, 489 U.S. 794,
799 (1989) (quoting United States v. MacDonald, 435 U.S. 850, 860 (1978)). Bescond
has identified no such right.
To be sure, as with Martirossian, Bescond’s “status as a fugitive [will]
become moot if [she] submits to the jurisdiction of the federal courts.” Martirossian,
917 F.3d at 888. But as Judge Sutton recognized in Martirossian, this “is true for
anyone unwilling to answer an indictment or arrest warrant. And yet that claim
alone has never warranted an interlocutory appeal.” Id.; see also id. at 887 (noting
absence of “freestanding right not to be labeled a fugitive”); Shalhoub, 855 F.3d at
1261–62 (rejecting argument that labelling a defendant a fugitive is sufficient to
justify interlocutory appeal). The majority identifies no persuasive reason that it
should warrant such an appeal here.
The majority asserts that it is “Bescond’s right to mount a defense [that] can
be vindicated now or never.” Maj. Op. at 17. But this asserted right is simply not
of the character of those rights that the Supreme Court has recognized to merit
review pursuant to the collateral order doctrine, lest they be lost forever. Consider
Abney v. United States, 431 U.S. 651 (1977). In Abney, the Court permitted
19
interlocutory appeal of an order denying a pretrial motion to dismiss an
indictment on double jeopardy grounds precisely because the Double Jeopardy
Clause protects “the right not to be tried twice for the same offense”—so that if a
criminal defendant is not to be deprived of that right completely, his challenge to
the indictment must be reviewable before a second trial takes place. Hollywood
Motor Car Co., 458 U.S. at 266; see also Abney, 431 U.S. at 662.
The supposed due process right on which Bescond relies is not of this sort:
it is “not one that must be upheld prior to trial if it is to be enjoyed at all.” Hollywood
Motor Car Co., 458 U.S. at 270. As the Supreme Court has explained, “[i]t is always
true . . . that ‘there is value . . . in triumphing before trial, rather than after it.’”
Lauro Lines s.r.l. v. Chasser, 490 U.S. 495, 499 (1989) (alteration in original) (quoting
MacDonald, 435 U.S. at 860 n.7). But the Supreme Court “has declined to find the
costs associated with unnecessary litigation to be enough to warrant allowing the
immediate appeal of a pretrial order.” Id.; see also Richardson-Merrell Inc. v. Koller,
472 U.S. 424, 431 (1985) (noting “possibility that a ruling may be erroneous and
may impose additional litigation expense is not sufficient to set aside the finality
requirement imposed by Congress”). Bescond may mount a defense at any time,
simply by submitting to the jurisdiction of the district court. If Bescond is correct
20
and the indictment charges an impermissible extraterritorial violation of the CEA,
this is a claim that she can pursue both in the district court and, if necessary, on
appeal. Granted, disentitlement prevents Bescond from litigating her claims from
a location of her choice, but the third requirement for an appealable collateral
order requires more than the convenience of an early dismissal of the charges from
a convenient locale. Bescond has simply failed to articulate any basis on which she
is entitled to an interlocutory appeal.
* * *
I have no doubt that the final judgment rule imposes costs on litigants who
must await a final judgment to have their positions vindicated on appeal. But
Congress and the Supreme Court have both told us that any benefits from
immediate appellate review in individual cases are substantially outweighed by
the costs of piecemeal adjudication overall, which include both delay and outright
frustration of the adjudicative process. Bescond contends that in the aftermath of
this Court’s decision in Prime International, the charges against her are a clear case
of prosecutorial overreach. We do not reach the merits of this contention because
we lack jurisdiction to do so. But we similarly lack jurisdiction over the issue that
the majority does reach. I fear that our decision today will prove yet again the
21
wisdom of the Supreme Court’s instruction, which the majority fails to heed, that
the collateral order exception to the finality rule is to be narrowly construed, and
most especially in criminal cases. Concluding that this appeal should be dismissed
in its entirety, I respectfully dissent.
22