Defending the Foreign “Fugitive” Against the Fugitive Disentitlement Doctrine
The fugitive disentitlement doctrine is an equitable doctrine under which a court has the discretion to decline to consider a petition of a defendant if that defendant does not submit the jurisdiction of the court. “The paradigmatic object of the doctrine is the convicted criminal who flees while his appeals is pending….” Today, however, the fugitive disentitlement doctrine has been applied beyond its intended application to bar a foreign citizen indicted by an Antitrust Division grand jury from raising any matters with the court unless he first appears personally before the court. It may be surprising to learn that a person who has never set foot in the United States may be considered a “fugitive.” If a grand jury in Detroit indicts a Japanese executive while he is having breakfast in Tokyo, he has become a “fugitive” if he does not surrender in the United States.
If a foreign defendant attempts to attack the validity of an indictment while remaining outside the jurisdiction of the United States, the government will typically raise the fugitive disentitlement doctrine and request that the court not consider the merits of the defendant’s request. But, if the defendant attempts to appear in court, he will be arrested upon entry into the United States, if not while in transit. This may seem unremarkable, because a domestic defendant will also be arrested upon indictment. The foreign defendant, however, faces extreme risks if he appears to have his defense heard. Once arrested, the foreign defendant may be unable to leave the United States until his case has reached final adjudication—perhaps years away. The cost of access to the courtroom to seek to dismiss an indictment for legal defects such as statute of limitations or lack of jurisdiction or other procedural matters is quite high for the foreign defendant—potentially years away from a job, home, family, health care providers and many other hardships of an indefinite stay in a foreign land. These are unique disadvantages not faced by a domestic defendants. [Read more…]