This past month, the U.S. Court of Appeals for the Second Circuit issued amended opinions and denied panel rehearing in United States v. Bescond, a case that concerns the ability of foreign defendants to seek relief from U.S. indictments. 2021 WL 6803154, at *1. In a 2-1 decision, the panel majority held that fugitive disentitlement orders are immediately appealable under the collateral order doctrine, and that foreign defendants who remain at home abroad should not be deemed fugitives. Chief Judge Debra Livingston dissented, arguing that the collateral order doctrine was inapplicable, and expressing skepticism about the majority’s fugitive analysis. The dueling opinions not only mark important development in the law of the circuit, but also reflect a fundamental disagreement about the role of the federal courts—and American justice—abroad.

The District Court Decision

The appellant, a French banker named Muriel Bescond, was charged with violations of the Commodity Exchange Act (CEA) in the Eastern District of New York. A citizen and resident of France, Bescond declined to travel to the United States and submit to the court’s jurisdiction. Through counsel, Bescond moved to dismiss the indictment on several grounds, including that the charges against her were based on an extraterritorial application of the CEA and violate her constitutional rights under the Due Process Clause. Bescond, 2021 WL 6803154, at *2. The district court concluded that Bescond’s refusal to travel to the United States rendered her a fugitive from justice. Applying the common law doctrine of “fugitive disentitlement,” which permits a court to refuse to consider the merits of a fugitive’s claims, the district court dismissed Bescond’s motion. Bescond appealed, and the government moved to dismiss the appeal, arguing that the Second Circuit lacked jurisdiction. Id. at *3.

The Majority Opinion

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