In the last few weeks, the U.S. Supreme Court declined an opportunity to examine an area of significant controversy affecting non-U.S. citizens who have been charged with crimes. The controversy is whether non-U.S. citizens should be allowed to seek the dismissal of criminal charges if they do not physically surrender themselves in the United States to law enforcement authorities. In this case, a U.S. district court in Southern California has refused to hear a challenge by Han Yong Kim, a South Korean citizen living and working in Seoul, to charges of foreign bribery because he has not traveled voluntarily to the United States and submitted himself to arrest by U.S. authorities.

In doing so, the district court relied on the “fugitive disentitlement” doctrine, which prevents individuals from obtaining assistance from the courts while at the same time fleeing from the court’s jurisdiction. Mr. Kim argued that he had not fled from the United States courts at all; he simply had not uprooted his life in Seoul and traveled to the United States to face charges that he believed were not valid. Mr. Kim asserted that the use of the fugitive disentitlement doctrine was not appropriate in his circumstances and that he should be permitted to raise his legal challenge while he continued his life in Seoul, safely out of the reach of U.S. law enforcement. Mr. Kim tried to appeal this ruling to the U.S. Court of Appeals for the Ninth Circuit, which concluded that the district court did not make a clear error in invoking the fugitive disentitlement doctrine, and then to the Supreme Court, which simply declined to hear his case.

Although Mr. Kim will not receive a hearing in the Supreme Court, his predicament illustrates a number of difficult and thought-provoking problems that have not been settled by the lower courts in the United States and that will continue to affect corporate officers, lawyers, and other professionals charged by the United States with committing an extraterritorial crime. On one hand, how can you flee the United States if you were never present in the United States in the first place or if you had already left the United States long before any charge was contemplated or filed? Do courts lose legitimacy if they rely on legal fictions to reach results that have practical benefits for the courts and the government but have no basis in fact? On the other hand, why should U.S. courts decide legal challenges from non-U.S. citizens who will not respect the court’s ruling if the court finds that the prosecution should proceed? Is it appropriate to exercise judicial authority in circumstances when one party is not truly bound by the result?

The burdens that this doctrine imposes on non-U.S. citizens

Behind this intellectual debate lie very real consequences for both non-U.S. citizens and the U.S. Department of Justice (DOJ). If the fugitive disentitlement doctrine is ultimately upheld, non-U.S. citizens will be left with two unenviable choices. If the non-U.S. citizen refuses to travel to the United States:

  • He will be unable to assert any defenses that he might have against the charges brought against him.
  • The DOJ will likely secure an Interpol Red Notice against him and cause him to be arrested if he leaves his own country, thereby effectively imposing an international travel ban on him.
  • He will be unable to clear his name for years and his reputation will suffer while charges are pending.

Because Mr. Kim has refused to travel to the United States to face charges, and because the district court has refused to allow him to put on a defense, Mr. Kim will be stuck in this precarious position indefinitely into the future. 

On the other hand, if a non-U.S. citizen submits to arrest in the United States, he faces a different set of uncomfortable and life-changing problems:

  • Once he is arrested, he might be denied bail by a U.S. court on the grounds that he presents a risk of flight, and he might be forced to defend himself from a prison cell. 
  • If the court released him from jail on bail conditions, the court might require him to remain in the United States until the conclusion of his case and prohibit him from returning to his home country, which might mean separation from his friends and his family for a number of years.
  • During his time in the United States, he may also lose his job and source of income because of his forced separation from work. 
  • If a court denied his motion to dismiss, he would have to proceed to trial unless he were to strike a plea bargain with the government. If he pleaded guilty or was found guilty by a jury, he would be subject to a prison sentence in the United States. Depending on the facts of his case, the prison sentence could be lengthy. He could appeal the sentence, but that may take a year or longer and have low odds of success.

As a consequence of all of the above, if a non-U.S. citizen surrenders himself in the United States and voluntarily submits to arrest, he faces the strong possibility that he will not set foot in his home country again for many years.

The DOJ believes that these consequences are a fair result of any criminal charge and that it should not be forced to use limited resources to defend indictments where non-U.S. citizens would simply ignore any adverse ruling on the merits. It also believes that non-U.S. citizens have an obligation to travel to the United States to answer criminal charges and that it is therefore appropriate to characterize the refusal to do so as “constructively fleeing” the jurisdiction. However, these defenses are primarily based on practical considerations and not arguments of well-settled legal duties, which makes the issue particularly appropriate for judicial review.

If courts are not permitted to invoke the fugitive disentitlement doctrine, more defendants will have the opportunity to challenge the outer limits of the U.S. government’s ability to bring criminal charges against non-U.S. citizens for alleged violations of the Foreign Corrupt Practices Act (FCPA), antitrust laws, sanctions laws, and other extraterritorial criminal statutes. Defendants who have successfully opposed extradition would have the right and the incentive to bring a legal challenge. But it would also benefit defendants who are currently forced to travel to the United States and often have to choose between contesting the government’s case and accepting the benefits of a plea agreement. If a non-U.S. citizen chooses a plea agreement, he often gives up the right to make a legal challenge to the charge, and therefore courts never decide whether criminal charges exceeded the government’s authority in those cases. If the fugitive disentitlement doctrine did not apply, a non-U.S. citizen could make his own challenge prior to arriving in the United States and deciding whether to accept a plea bargain.

U.S. lower courts have reached contrary results

A number of lower courts have confronted the validity of applying the fugitive disentitlement doctrine to non-U.S. citizens and reached different conclusions. However, none of these cases have fully answered the difficult questions that surround the doctrine.

At least two courts have ruled that a non-U.S. citizen is not a fugitive and the doctrine does not apply if he did not flee the United States for the purposes of avoiding the court’s jurisdiction. In allowing Kuwaiti resident Ali Hijazi to make a legal challenge, the Seventh Circuit Court of Appeals reasoned that the accused and society have an interest in the prompt resolution of proceedings and that this interest is served by allowing a non-U.S. citizen who did not flee the jurisdiction to raise a defense. In re Hijazi, 589 F.3d 401, 409-10 (7th Cir. 2009). Addressing the fairness issue, the Seventh Circuit believed that an international citizen already has enough to lose if he loses the motion to dismiss (including the loss of a right to travel abroad), a stake that justifies a right to receive a ruling in the case. Similarly, a Georgia federal court allowed a Kuwaiti company to argue that it was not properly served in a criminal case both because it did not flee the jurisdiction and because the purpose of the service rules would be negated if the Kuwaiti company had to submit to jurisdiction without being served properly. See United States v. The Public Warehousing Co., 2011 WL 1126333, *3 (N.D. Ga. March 28, 2011).

However, a number of other courts have endorsed the concept of “constructive flight.” In United States v. Catino, the Second Circuit stated in broad terms that “[t]he intent to flee from prosecution or arrest may be inferred from a person’s failure to surrender to authorities once he learns that charges against him are pending” and that “[t]his is true whether the defendant leaves the jurisdiction intending to avoid prosecution, or, having learned of charges while legally outside the jurisdiction, ‘constructively flees’ by deciding not to return.” 735 F.2d 718, 724 (2d Cir. 1984). A number of other courts, including the Los Angeles district court in Mr. Kim’s case, have followed this logic in a variety of criminal cases and forfeiture cases. See, e.g., In re Prevot, 59 F.3d 556, 567 (6th Cir. 1995); Schuster v. United States, 765 F.2d 1047, 1050-51 (11th Cir. 1985); United States v. Oliveri, 190 F. Supp. 2d 933, 936 (S.D. Tex. 2001).

None of these cases have wholly responded to the compelling arguments contrary to their positions. The courts in theHijazi and The Public Warehousing Co. cases do not fully address why a court should not be concerned about the fairness in issuing a decision that will not bind the parties. The courts following the Catino line of logic do not acknowledge the onerous burdens placed on a non-U.S. citizen defending himself thousands of miles away from home or the strain that the fugitive disentitlement doctrine places on the ordinary understanding of the term "fugitive."

The need for Supreme Court review

The application of the fugitive disentitlement doctrine is an important issue that warrants Supreme Court review. It is an issue of fundamental fairness for both non-U.S. citizens and the DOJ. Both sides have reasonable and forceful arguments to make, and the future of the doctrine is an important one that will have very real consequences for the U.S. government and private citizens around the world. There should not be a different set of rules for a non-U.S. citizen simply because he happened to be charged in one U.S. court versus another. The Supreme Court should decide which side should prevail.

Kaitlyn Golden