District Court Applies "Fugitive Disentitlement Doctrine" To Bar Constitutional Due Process Challenge Brought by Non-U.S. Criminal Defendant Who Had Never Been Served Personal Jurisdiction/Forum Non Conveniens

The World in U.S. Courts: Fall 2015 - White Collar Criminal Law | August.03.2015

U.S. v. Darin, United States District Court for the Southern District of New York, August 3, 2015

Defendant Darin was charged with Wire Fraud for his alleged role in rigging the LIBOR benchmark. He moved to dismiss the indictment against him on grounds that he had insufficient contacts with the U.S. to sustain a criminal charge consistent with the Due Process protections of the Fifth Amendment to the U.S. Constitution, and that the prosecution in any event constituted an impermissibly extraterritorial application of the Wire Fraud statute.

The District Court in New York agreed with the parties that Due Process protection would apply as a general matter, but the Court considered whether the "fugitive disentitlement doctrine" would preclude Darin from taking advantage of it. The doctrine is equitable in nature and discretionary, and when applied serves to prevent defendants who "evade the authority of the justice system at any stage" from exercising rights they would otherwise possess as criminal defendants.

The Court first determined that Darin was a "fugitive," even though he never fled the U.S., or indeed was ever in the U.S.. Rather, the Court concluded that a defendant can be a "constructive fugitive" merely by refusing to turn himself in to U.S. authorities after learning that charges against him have been filed.

Next, the Court considered the four factors that determine whether to apply the "fugitive disentitlement doctrine": "(1) whether a decision on the merits would be enforceable; (2) whether the defendant is flouting the judicial process; (3) whether a decision on the merits would encourage similar flights from justice; and (4) whether the defendant's evasion prejudices the Government." The Court found all four factors pointed to application of the doctrine. In Darin's absence, no prosecution could be enforced against him, also demonstrating prejudice to the Government; he is "flouting" the judicial process by asking for relief even though he remains "at a safe distance" at no risk; and allowing his effort to succeed would encourage other individuals located outside the U.S. not to come to the U.S. to submit to the jurisdiction of the criminal justice system.

Although not necessary for decision, the Court observed that the alleged crime of wire fraud focuses on the location of the "wires," not the location of the alleged scheme. Because Darin was charged with using U.S. means of telecommunication, the Court concluded that only a domestic violation had been charged.

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