Prosecutions of foreign nationals often raise difficult questions of extraterritoriality and due process. Defendants living abroad at the time of their indictment also face the dilemma of whether to appear in the United States to mount a defense or remain abroad with the pending charges affecting their reputation, business, and ability to travel internationally. This dilemma is particularly acute for defendants who, based upon a lack of nexus to the United States, might have a compelling challenge to their charges. Recently, some defendants have tried to raise those extraterritoriality challenges from abroad, but they have faced a roadblock: Although they never fled from the United States, their “fugitive” status prevents them from accessing the courts.

Fugitive Disentitlement Doctrine

Fugitive disentitlement is a discretionary judicial doctrine that allows a court to disallow or hold in abeyance any application of an absent criminal defendant until that defendant submits to the jurisdiction of the court. “[O]riginally developed by courts to support dismissal of direct appeals by escaped criminal defendants,” Collazos v. United States, 368 F.3d 190, 197 (2d Cir. 2004), the doctrine is grounded in the idea that one who seeks to benefit from the court system must also submit to its burdens. Following extension of the doctrine into civil matters, Congress explicitly granted courts the authority to disentitle certain categories of fugitives from challenging civil forfeitures of their funds. See Civil Asset Forfeiture Reform Act of 2000 (CAFRA), 28 U.S.C. §2466.