Proceedings at an Impasse: Appealing Fugitive Disentitlement Orders of International Defendants Under the Collateral Order Doctrine

October 1, 2023

The doctrine of fugitive disentitlement allows federal courts to decline to entertain a defendant’s claims when that defendant is deemed a fugitive from justice.  Once disentitled, defendants cannot seek relief from the judicial system until they submit to the court’s jurisdiction.  But complications emerge when federal district courts disentitle non–U.S. citizens who reside outside of the United States, who are indicted for alleged misconduct committed abroad, and who attempt to dismiss charges while remaining in their home countries.  Federal circuit courts of appeals are split on whether such defendants can appeal from a fugitive disentitlement ruling without submitting to the court’s jurisdiction and before a final judgment in the case.

This circuit split results from disagreement over whether this category of fugitive disentitlement orders falls within the collateral order exception to the final judgment rule.  This Note argues that these orders meet the collateral order doctrine’s requirements and overcome the doctrine’s heightened strictness in criminal cases.  Foreign defendants face unique risks in deciding whether to enter the United States, and their indictments raise questions about the reach of federal criminal law.  Accordingly, this Note advocates that courts adopt the U.S. Court of Appeals for the Second Circuit’s jurisdictional holding in United States v. Bescond to permit immediate appeal and proposes additional boundaries for the category of appealable disentitlement orders.

October 2023

No. 1