19-1698
`United States v. Sindzingre
`
`
`United States Court of Appeals
`for the Second Circuit
`
`AUGUST TERM 2020
`No. 19-1698
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`
`
`
`Before:
`
`
`UNITED STATES OF AMERICA,
`Appellee,
`
`v.
`
`MURIEL BESCOND,
`Defendant-Appellant,
`
`DANIELLE SINDZINGRE,
`Defendant.
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`ARGUED: SEPTEMBER 3, 2020
`DECIDED: AUGUST 5, 2021
`AMENDED: FEBRUARY 3, 2022
`
`LIVINGSTON, Chief Judge, WALKER, JACOBS, Circuit Judges.*
`
`Muriel Bescond, a citizen and resident of France, is charged with violating
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`the Commodity Exchange Act (“CEA”). She appeals from the memorandum and
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`order of the United States District Court for the Eastern District of New York
`
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`* This amended opinion and amended dissent supersede the opinion and dissent
`decided on August 5, 2021. The motion for panel rehearing is otherwise denied.
`
`
`United States v. Sindzingre
`
`
`United States Court of Appeals
`for the Second Circuit
`
`AUGUST TERM 2020
`No. 19-1698
`
`
`
`
`Before:
`
`
`UNITED STATES OF AMERICA,
`Appellee,
`
`v.
`
`MURIEL BESCOND,
`Defendant-Appellant,
`
`DANIELLE SINDZINGRE,
`Defendant.
`
`ARGUED: SEPTEMBER 3, 2020
`DECIDED: AUGUST 5, 2021
`AMENDED: FEBRUARY 3, 2022
`
`LIVINGSTON, Chief Judge, WALKER, JACOBS, Circuit Judges.*
`
`Muriel Bescond, a citizen and resident of France, is charged with violating
`
`the Commodity Exchange Act (“CEA”). She appeals from the memorandum and
`
`order of the United States District Court for the Eastern District of New York
`
`
`* This amended opinion and amended dissent supersede the opinion and dissent
`decided on August 5, 2021. The motion for panel rehearing is otherwise denied.
`
`
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`(Seybert, J.), which applied the fugitive disentitlement doctrine and denied her
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`motions to dismiss the indictment on grounds of (inter alia) extraterritoriality
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`and due process. On appeal, Bescond argues that the collateral order doctrine
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`confers appellate jurisdiction to review the application of the fugitive
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`disentitlement doctrine, and that there is pendent appellate jurisdiction to review
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`the merits of her challenges based on extraterritoriality and due process. As to
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`merits, she argues that the district court misapplied the fugitive disentitlement
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`doctrine, that the indictment impermissibly charges her with extraterritorial
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`violations of the CEA, and that her prosecution is inconsistent with due process.
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`We conclude that we have jurisdiction to review the disentitlement ruling, but
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`none to review the merits of extraterritoriality or due process. We conclude that
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`Bescond is not a fugitive and, even if she were a fugitive, the district court
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`abused its discretion in disentitling her. Accordingly, we REVERSE the order
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`disentitling Bescond and REMAND for further proceedings to consider or
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`reconsider the merits of her motions to dismiss, and we DISMISS this appeal
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`insofar as it seeks review of the (alternative) rulings on extraterritoriality and due
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`process.
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`Chief Judge Livingston dissents in a separate opinion.
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`2
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`__________________
`
`JEREMY R. SANDERS, Appellate Counsel (David C.
`James, Alixandra Smith, Andrey Spektor, Assistant
`United States Attorneys, for JACQUELYN M. KASULIS,
`Acting United States Attorney for the Eastern District of
`New York; Carol L. Sipperly, Senior Litigation Counsel;
`Timothy A. Duree, Trial Attorney; Brian A.
`Benczkowski, Assistant Attorney General; John P.
`Cronan, Deputy Assistant Attorney General; on the
`brief), Washington, DC and Brooklyn, NY, for Appellee
`United States of America.
`
`LAURENCE S. SHTASEL, Blank Rome LLP, New York,
`NY, for Defendant-Appellant Muriel Bescond.
`
`
`DENNIS JACOBS, Circuit Judge:
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`Muriel Bescond, a French banker, is charged with transmitting false,
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`misleading, and knowingly inaccurate commodities reports, and with conspiracy
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`to do the same, in violation of the Commodity Exchange Act (“CEA”). A citizen
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`and resident of France, she allegedly participated in the LIBOR benchmark
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`interest rate calculation process from her office in Paris. It is alleged that, by
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`causing an artificial reduction in LIBOR rates, she affected the pricing of futures
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`contracts traded on the Chicago Mercantile Exchange. Bescond remains in
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`France today and has not submitted to the district court’s jurisdiction.
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`3
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`
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`Through counsel, Bescond moved to dismiss the indictment on the
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`grounds that (1) it impermissibly charged her with extraterritorial violations of
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`the CEA, (2) the prosecution violated her Fifth Amendment due process rights,
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`(3) the government selectively prosecuted her because she is a woman, and (4)
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`the statute of limitations had run. The United States District Court for the
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`Eastern District of New York (Seybert, J.) concluded that Bescond was a fugitive,
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`exercised discretion to apply the fugitive disentitlement doctrine, and declined to
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`decide the merits of her motions. Under the doctrine of fugitive disentitlement, a
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`court may decline to entertain the claims of a defendant who is a fugitive from
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`justice. Molinaro v. New Jersey, 396 U.S. 365, 366 (1970) (per curiam); Nen Di
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`Wu v. Holder, 646 F.3d 133, 135 & n.2 (2d Cir. 2011).
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`In the alternative, the district court rejected the extraterritoriality and due
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`process challenges on the merits. Since additional briefing would have been
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`needed to decide the claims of selective prosecution and statute of limitations,
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`the court did not reach them, even hypothetically.
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`Because Bescond appeals from a memorandum and order issued pre-trial,
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`we must first ascertain appellate jurisdiction. Bescond contends (i) that the
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`collateral order doctrine affords jurisdiction to entertain the challenge to her
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`4
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`
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`designation as a fugitive and the exercise of discretion to disentitle her, and (ii)
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`that there is pendent appellate jurisdiction to decide whether the indictment
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`impermissibly charges extraterritorial violations of the CEA and whether the
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`prosecution violates her due process rights. We conclude that we have
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`jurisdiction to review the order disentitling Bescond, which we reverse, and we
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`remand for further proceedings to consider or reconsider the merits of her
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`motions to dismiss. However, we conclude that we lack jurisdiction to review
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`the merits of the extraterritoriality and due process challenges and dismiss the
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`appeal to that extent.
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`
`
`BACKGROUND
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`Muriel Bescond is a French citizen living in France who worked as the
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`head of the Paris treasury desk at Société Générale (“SocGen”), a global bank
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`headquartered in France. The indictment charges that, between May 2010 and
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`October 2011, she participated in a scheme to manipulate the United States
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`Dollar London Interbank Offered Rate (“USD LIBOR”).
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`LIBOR is a benchmark interest rate, calculated for various currencies and
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`borrowing periods, that averages the rates at which certain banks borrow
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`5
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`unsecured funds. At the time of the alleged scheme, the USD LIBOR calculation
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`process began with sixteen “Contributor Panel” banks submitting estimates of
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`the rates at which they could borrow funds. SocGen, one of the sixteen,
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`employed “submitters” or “setters” to prepare these estimates and transmit them
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`to Thomson Reuters in London. Thomson Reuters set aside the four highest
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`estimates and the four lowest, and averaged the eight estimates in the middle to
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`arrive at the final USD LIBOR, or the “fix.” The final rate was transmitted to
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`three data centers for worldwide publication, including one center in
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`Hauppauge, New York.
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`The prices of certain financial instruments depend on USD LIBOR. One
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`such instrument is the Eurodollar futures contract, the price of which reflects the
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`predicted USD LIBOR at the end of a fixed period. Investors trade Eurodollar
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`futures contracts as a commodity on the Chicago Mercantile Exchange.1
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`In Paris, Bescond supervised SocGen’s setters. At the direction of the
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`bank’s Global Head of Treasury Danielle Sindzingre, Bescond instructed the
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`1 Eurodollars are interest-yielding U.S. dollars deposited in foreign banks for
`fixed amounts of time. Eurodollar futures contracts are derivatives whose prices
`reflect the predicted USD LIBOR at the end of the three-month term of a $1
`million deposit. Investors trade Eurodollar futures contracts based on their
`predictions of USD LIBOR increases and decreases.
`6
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`
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`setters to prepare false USD LIBOR submissions that were lower than SocGen’s
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`actual borrowing rates. The object was to protect SocGen’s reputation as a sound
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`financial institution by understating the rates at which SocGen could borrow
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`money. The setters transmitted the false USD LIBOR submissions to a SocGen
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`manager in London, who transmitted them in turn to Thomson Reuters.
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`SocGen’s false submissions artificially lowered the USD LIBOR fix, affecting
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`financial transactions that referenced USD LIBOR.
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`The indictment filed in the Eastern District of New York charged Bescond
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`with four substantive counts of transmitting false, misleading, and knowingly
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`inaccurate commodities reports in violation of the Commodity Exchange Act
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`(“CEA”), 7 U.S.C. § 13(a)(2), and one count of conspiracy to do the same.
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`Bescond remains in France and has not submitted to the district court’s
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`jurisdiction. France will not extradite her.
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`Through counsel, Bescond moved to dismiss the indictment. Her first
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`motion argued that the indictment violated the Fifth Amendment right to due
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`process because it failed to allege a sufficient nexus with the United States, and
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`that the statute of limitations had run. Her second motion argued that the
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`government was selectively prosecuting women participants in the alleged
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`7
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`scheme, while declining to prosecute men who were similarly situated. At the
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`district court’s request, Bescond filed an additional brief arguing that the
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`indictment charged an impermissible extraterritorial application of the CEA.
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`Bescond also argued that, as an alternative to dismissal on grounds of selective
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`prosecution and statute of limitations, the court should order discovery and
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`additional briefing from the government on those issues.
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`The district court concluded that Bescond was a fugitive and made the
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`discretionary ruling that disentitlement was warranted. Accordingly, the court
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`declined to reach the merits of Bescond’s motions. The court then issued an
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`alternative ruling on the merits, in order “to provide the Second Circuit with a
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`complete record on review.” United States v. Sindzingre, No. 17-CR-0464(JS),
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`2019 WL 2290494, at *9 (E.D.N.Y. May 29, 2019). It concluded that the indictment
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`properly charged domestic violations of the CEA and that the prosecution did
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`not violate Bescond’s due process rights. The court declined to make an
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`alternative ruling on selective prosecution and the statute of limitations because
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`“additional briefing and information” would be needed to resolve those issues.
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`Id. Bescond’s motions to dismiss were denied in a memorandum and order.
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`8
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`Bescond has appealed. The government moved to dismiss the appeal on
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`the ground that we lack jurisdiction for want of a final judgment. A motions
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`panel of this Court denied the motion, citing the collateral order doctrine.
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`On appeal, Bescond argues that, as the motions panel concluded, there is
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`appellate jurisdiction to review the disentitlement ruling under the collateral
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`order doctrine; and that we should exercise pendent appellate jurisdiction to
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`review the alternative rulings on the merits of extraterritoriality and due process
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`(Point I below). She argues that the district court erred in designating her a
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`fugitive and in exercising discretion to disentitle her (Point II). Finally, she
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`argues that the indictment charges an impermissible extraterritorial application
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`of the CEA and violates her due process rights (which we cannot decide for lack
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`of jurisdiction).
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`
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`DISCUSSION
`
`I
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`Courts of appeals “have jurisdiction of appeals from all final decisions of
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`the district courts of the United States.” 28 U.S.C. § 1291. Known as the “final
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`judgment rule,” section 1291 “requires ‘that a party must ordinarily raise all
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`9
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`claims of error in a single appeal following final judgment on the merits.’”
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`Flanagan v. United States, 465 U.S. 259, 263 (1984) (quoting Firestone Tire &
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`Rubber Co. v. Risjord, 449 U.S. 368, 374 (1981)). In a criminal case, the final
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`judgment rule “prohibits appellate review until conviction and imposition of
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`sentence.” Id. (citing Berman v. United States, 302 U.S. 211, 212 (1937)). The rule
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`“minimiz[es] appellate-court interference with the numerous decisions [trial
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`judges] must make in the pre-judgment stages of litigation[,] . . . reduces the
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`ability of litigants to harass opponents and to clog the courts through a
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`succession of costly and time-consuming appeals[, and] is crucial to the efficient
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`administration of justice.” Id. at 263–64 (citing Firestone Tire, 449 U.S. at 374).
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`Because these interests “are ‘especially compelling in the administration of
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`criminal justice,’” the policy underlying the final judgment rule “is at its
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`strongest in the field of criminal law.” Id. at 264 (first quoting Cobbledick v.
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`United States, 309 U.S. 323, 325 (1940), and then quoting United States v.
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`Hollywood Motor Car Co., 458 U.S. 263, 265 (1982)).
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`Nevertheless, in limited circumstances, a court of appeals may exercise
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`jurisdiction absent a final judgment on the merits. Under the collateral order
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`doctrine, a court of appeals has jurisdiction to review an order that (1)
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`10
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`
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`“conclusively determine[s] the disputed question”; (2) “resolve[s] an important
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`issue completely separate from the merits of the action”; and (3) is “effectively
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`unreviewable on appeal from a final judgment.” Id. at 265 (quoting Coopers &
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`Lybrand v. Livesay, 437 U.S. 463, 468 (1978), superseded on other grounds by
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`Fed. R. Civ. P. 23(f)); see Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546
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`(1949).2 We apply the collateral order doctrine “with the utmost strictness in
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`criminal cases.” Flanagan, 465 U.S. at 265.
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`Relatedly, we may exercise pendent appellate jurisdiction in certain
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`interlocutory appeals. When we have jurisdiction to review “‘an interlocutory
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`appeal of one ruling,’” we may also “exercise jurisdiction over other, otherwise
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`unappealable interlocutory decisions, where such rulings are ‘inextricably
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`intertwined’ with the order over which we properly have appellate jurisdiction,
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`or where review of such rulings is ‘necessary to ensure meaningful review’ of the
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`appealable order.” Atlantica Holdings, Inc. v. Sovereign Wealth Fund Samruk-
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`Kazyna JSC, 813 F.3d 98, 116–17 (2d Cir. 2016) (quoting Myers v. Hertz Corp., 624
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`F.3d 537, 552 (2d Cir. 2010)).
`
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`2 This case does not implicate the various statutory exceptions to the final
`judgment rule. See, e.g., 28 U.S.C. § 1292 (permitting appellate review of certain
`interlocutory decisions).
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`11
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`We agree with Bescond that we have jurisdiction to review the fugitive
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`disentitlement ruling pursuant to the collateral order doctrine; we disagree that
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`we have pendent jurisdiction to review the alternative rulings concerning
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`extraterritoriality and due process.
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`
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`A.
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`The collateral order doctrine
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`A motions panel has already decided that the collateral order doctrine
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`affords appellate jurisdiction to review the disentitlement order in this case.
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`Upon our own independent review, we hold that we have jurisdiction under the
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`collateral order doctrine to review an order disentitling a foreign citizen who has
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`remained at home abroad—in this case, without evasion, stealth, or concealment.
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`
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`1.
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`Conclusive determination
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`It is undisputed (including by the dissent for purposes of this appeal) that
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`the disentitlement ruling satisfies the first requirement of the collateral order
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`doctrine: it “conclusively determine[s] the disputed question.” Flanagan, 465
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`U.S. at 265 (quoting Coopers & Lybrand, 437 U.S. at 468).
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`12
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`2.
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`An important issue separate from the merits
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`Disentitlement is “important”—that is, it is “weightier than the societal
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`interests advanced by the ordinary operation of final judgment principles.”
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`Digit. Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 879 (1994).
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`Disentitlement heavily burdens Bescond’s exercise of the due process right to
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`defend herself in court. See In re Oliver, 333 U.S. 257, 273 (1948); Holden v.
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`Hardy, 169 U.S. 366, 390 (1898); Hovey v. Elliott, 167 U.S. 409, 417 (1897). As long
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`as she is disentitled, she cannot mount a defense unless she travels to the United
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`States, thereby risking pre-trial detention and trial in a foreign country and
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`causing an extended absence that could jeopardize her career and would cut off
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`her income (which, incidentally, is the sole support of her family). These
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`burdens are especially weighty in view of France’s non-extradition policy; as far
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`as her home country is concerned, Bescond has no obligation to appear in the
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`United States. Cf. In re Hijazi, 589 F.3d 401, 407–08 (7th Cir. 2009) (reasoning that
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`because a foreign defendant was “under no obligation to travel to the United
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`States,” mandamus was justified to compel a ruling on motions to dismiss). On
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`the other hand, if she remains in France, she has no opportunity to contest the
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`charges against her and will live indefinitely with the imputation of being a
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`13
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`fugitive (bad enough for anyone, and ruinous for a banking executive). In this
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`case, disentitlement thus imposes a penalty for staying home.
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`Disentitlement is a sanction “most severe.” Degen v. United States, 517
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`U.S. 820, 828 (1996). In Degen, the Supreme Court considered a district court’s
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`inherent power to disentitle a claimant in a civil forfeiture suit. See id. at 821. At
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`stake was the “right to a hearing to contest the forfeiture of . . . property, a right
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`secured by the Due Process Clause.” Id. at 822. The Court cautioned against
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`“the harsh sanction of absolute disentitlement.” Id. at 827.3 A fortiori the
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`sanction is harsh when the due process right at stake is to defend liberty; so the
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`issue is important. The severity of disentitlement is sharpened here because
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`disentitlement has been applied to bar Bescond’s challenge to the CEA’s
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`extraterritoriality, that is, whether the law she is alleged to have violated can
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`reach her and her conduct in the first place. Cf. In re Hijazi, 589 F.3d at 411
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`(concluding that a writ of mandamus ordering the district court to rule on the
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`merits of a motion to dismiss an indictment was appropriate when the foreign
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`defendant “raise[d] serious questions about the reach of U.S. law,” and “there
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`[was] reason to believe that [the] case raise[d] delicate foreign relations issues”).
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`3 Congress subsequently permitted disentitlement in forfeiture cases by statute.
`See 28 U.S.C. § 2466.
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`14
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`
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`Bescond’s right to defend against criminal charges is no less important
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`than the interests implicated in other kinds of cases in which interlocutory
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`review is available. A collateral order denying a motion to reduce bail is
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`immediately appealable: the “traditional right to freedom before conviction . . .
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`serves to prevent the infliction of punishment prior to conviction.” Stack v.
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`Boyle, 342 U.S. 1, 3–4, 6 (1951). And the “liberty interest” jeopardized by an
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`order of commitment also supports interlocutory review. United States v. Gold,
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`790 F.2d 235, 239 (2d Cir. 1986). The penalty that disentitlement imposes prior to
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`conviction, and the threat that it poses to the right to defend liberty, are just as
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`important.4
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`The dissent posits that a foreign citizen such as Bescond enjoys the right to
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`due process only on U.S. soil. It cites Agency for International Development v.
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`Alliance for Open Society International, Inc., 140 S. Ct. 2082 (2020), which held
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`that “foreign organizations operating abroad . . . possess no rights under the First
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`Amendment,” id. at 2087. But Bescond is not a free-floating foreigner invoking
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`4 The dissent says that we “have more often [than not] declined invitations to
`create ever more appealable collateral orders,” Dissent at 4—an assertion
`supported by a paucity of citations. That says nothing about whether we should
`entertain this appeal. The dissent treats the collateral order doctrine as a series of
`watertight “exception[s]” on a “list.” Id. at 3-4. In fact, the only category is the
`set of cases that satisfy the doctrine’s three requirements.
`15
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`
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`the jurisdiction of our federal courts to vindicate a Constitutional right. It is the
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`government that invoked such jurisdiction when it pursued indictment; Bescond
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`is a defendant in a U.S. criminal court. As such, she is not without rights. If the
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`right to due process does not attach until Bescond travels to the United States, it
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`will have been infringed beyond remedy as soon as the right attaches.
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`Disentitlement also satisfies the requirement that issues for interlocutory
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`review be completely separate from the merits of the underlying criminal action.
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`The question is whether disentitlement is “collateral” to Bescond’s “guilt or
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`innocence of the charges against [her].” Gold, 790 F.2d at 238. In Bescond’s case,
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`disentitlement has nothing to do with her guilt or innocence: it bears not on
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`whether she violated the CEA, but rather on her ability to defend herself. See id.
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`(concluding that a defendant’s competence to stand trial was “entirely separate”
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`from the issue of whether he committed the alleged crime, and therefore suitable
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`for immediate appellate review).
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`Accordingly, the disentitlement ruling “resolve[s] an important issue
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`completely separate from the merits of the action.” Flanagan, 465 U.S. at 265
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`(quoting Coopers & Lybrand, 437 U.S. at 468).
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`16
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`3.
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`Effectively unreviewable post-judgment
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`
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`Disentitlement is effectively unreviewable on appeal from a final
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`judgment. Id. (quoting Coopers & Lybrand, 437 U.S. at 468). This “third prong
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`of the [collateral order] test is satisfied only where the order at issue involves ‘an
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`asserted right the legal and practical value of which would be destroyed if it
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`were not vindicated before trial.’” Midland Asphalt Corp. v. United States, 489
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`U.S. 794, 799 (1989) (quoting United States v. MacDonald, 435 U.S. 850, 860
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`(1978)). Bescond’s right to mount a defense can be vindicated now or never. If
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`she remains in France—as France entitles her to do—she will never stand trial;
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`naturally, she will have no opportunity to appeal and alleviate the damage to her
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`life and reputation. See Gold, 790 F.2d at 239 (“[T]here may never be a criminal
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`trial if the defendant is never found competent to stand trial; in this instance,
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`there would be no appellate review.”). Alternatively, if she succumbs to the
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`pressure of disentitlement and appears in the United States, an appeal could not
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`remedy “the very harm that [s]he seeks to avoid.” Sell v. United States, 539 U.S.
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`166, 177 (2003); see Gold, 790 F.2d at 239. Even acquittal would not “undo th[e]
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`harm.” Sell, 539 U.S. at 177; see Gold, 790 F.2d at 239.
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`17
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`4.
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`Out-of-circuit views
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`The Sixth and Eleventh Circuits have ruled that they lacked jurisdiction to
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`hear interlocutory appeals from rulings that disentitled fugitives. (The
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`government erroneously contends that we, too, have so held.5) Respectfully, we
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`disagree.
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`In United States v. Shalhoub, the Eleventh Circuit reasoned that “absent
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`the assertion of a right not to be tried or the assertion of a right akin to the right
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`against excessive bail, a defendant must accept the burdens of trial and
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`sentencing before he obtains appellate review of an adverse ruling.” 855 F.3d
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`1255, 1261 (11th Cir. 2017). While “[t]he right against excessive bail is a
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`constitutional right,” it continued, “[a defendant] has no right to avoid being
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`labelled a fugitive.” Id.
`
`
`5 The dissent invokes United States v. Golden, which disclaimed jurisdiction to
`review an order that denied a motion to dismiss made by a defendant who lived
`abroad and failed to appear. 239 F.2d 877, 878-79 (2d Cir. 1956). We do not
`regard that 1956 ruling, which was decided under the off-shoot rule, as
`foreclosing today’s decision. Golden was a United States citizen who left the
`country for Thailand, renounced his citizenship, and was charged with failing to
`appear when drafted a few months after he decamped. Id. He therefore had
`recently been in this country, had been briefly abroad, and could defend himself
`here without the same weighty burdens facing Bescond.
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`
`
`
`18
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` However, Bescond does assert a constitutional right: the right to defend
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`herself in court. And neither the Supreme Court nor this Court has categorically
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`limited the collateral order doctrine to the right not to be tried and the right
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`against excessive bail. For example, an order requiring the involuntary
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`administration of antipsychotic drugs is immediately appealable because of the
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`“privacy and security” interests at stake. Sell, 539 U.S. at 176–77 (quoting
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`Winston v. Lee, 470 U.S. 753, 759 (1985)). So, too, is “an order transferring a
`
`juvenile to adult status” in a criminal proceeding, as it deprives the defendant of
`
`such “legal and practical benefits” as the sealing of records and pre-trial
`
`detention in settings favorable to adult prison. United States v. Doe, 49 F.3d 859,
`
`865 (2d Cir. 1995).
`
`In United States v. Martirossian, the Sixth Circuit reasoned that the
`
`“[c]onsiderable overlap” between the issues of whether the defendant was a
`
`fugitive, and whether the relevant criminal statute applied to foreigners,
`
`counseled against interlocutory review. 917 F.3d 883, 888 (6th Cir. 2019). True,
`
`Bescond challenges the CEA’s assertedly extraterritorial application—a concept
`
`that, broadly speaking, overlaps with fugitivity. But the issues are distinct. In
`
`reviewing extraterritoriality, we consider the CEA’s text. See RJR Nabisco, Inc. v.
`
`
`
`19
`
`
`
`Eur. Cmty., 136 S. Ct. 2090, 2101 (2016). In reviewing disentitlement, we ask
`
`whether Bescond meets the definition of a “fugitive” and consider whether
`
`disentitling her would serve the purposes of the doctrine. Empire Blue Cross &
`
`Blue Shield v. Finkelstein, 111 F.3d 278, 280–81 (2d Cir. 1997). Although
`
`Bescond’s location abroad is relevant to both analyses, see RJR Nabisco, 136 S. Ct.
`
`at 2101; Finkelstein, 111 F.3d at 280, we can—and do—decide one issue without
`
`deciding the other.
`
`The Sixth Circuit rejected Martirossian’s argument that fugitivity would be
`
`unreviewable on appeal from a final judgment, but conceded (fatally) that a
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`defendant’s fugitive status “become[s] moot” once “he submits to the jurisdiction
`
`of the federal courts.” Martirossian, 917 F.3d at 888.
`
`We are persuaded that we may properly review the disentitlement ruling
`
`as a collateral order.6
`
`
`6 The dissent casts our holding in broad terms, so that it is the dissent rather than
`this opinion that would provoke the abuses that the dissent foreshadows.
`Concerned about how we will deal with future foreign defendants abroad, the
`dissent conjures up cybercriminals and villains in caves. But whether in a cave
`or behind a screen, such bad actors have concealed themselves and are thus
`easily distinguishable from Bescond. In any event, every disposition leaves
`unresolved questions that may arise in cases that follow in its wake. That is why
`we turn on the lights.
`
`
`
`20
`
`
`
`Pendent appellate jurisdiction
`
`B.
`
`
`Does jurisdiction to review the disentitlement ruling empower us to
`
`review the alternative rulings on the merits of extraterritoriality and due
`
`process? It does not.
`
`Under the doctrine of pendent appellate jurisdiction, an interlocutory
`
`appeal of one ruling permits us “to exercise jurisdiction over other, otherwise
`
`unappealable interlocutory decisions, where such rulings are ‘inextricably
`
`intertwined’ with” or “‘necessary to ensure meaningful review’ of the appealable
`
`order.” Atlantica Holdings, Inc., 813 F.3d at 116–17 (quoting Myers, 624 F.3d at
`
`552). Pendent appellate jurisdiction is available only in “narrowly
`
`circumscribed” circumstances, “in order to avoid ‘encourag[ing] parties to parlay
`
`[reviewable] collateral orders into multi-issue interlocutory appeal tickets,’
`
`thereby undermining the general rule that an appeal may not be taken until a
`
`final judgment has been entered.” Id. at 117 (first alteration in original) (quoting
`
`Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 49–50 (1995)). “[T]he exercise of
`
`pendent appellate jurisdiction is discretionary,” and “we will only exercise [such
`
`jurisdiction] in exceptional circumstances.” Id. (quoting Myers, 624 F.3d at 553);
`
`see Bolmer v. Oliveira, 594 F.3d 134, 141 (2d Cir. 2010) (“[P]endent appellate
`
`
`
`21
`
`
`
`jurisdiction should be exercised sparingly, if ever.” (quoting Mancuso v. N.Y.
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`State Thruway Auth., 86 F.3d 289, 292 (2d Cir. 1996))).
`
`These circumstances are insufficiently exceptional. Bescond asserts that
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`review of the merits of extraterritoriality and due process is necessary to ensure
`
`meaningful review of her disentitlement. But her argument at best is that the
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`concepts of extraterritoriality and due process would be enlightening because
`
`they illustrate why she is justified in remaining abroad. This is not enough. See
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`Myers, 624 F.3d at 553–54 (explaining that, even when two independent issues
`
`are factually or legally similar, pendent appellate jurisdiction does not lie when
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`“resolution of the non-appealable order would require us to conduct an inquiry
`
`that is distinct from and ‘broader’ than the inquiry required to resolve solely the
`
`issue over which we properly have appellate jurisdiction” (quoting Britt v.
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`Garcia, 457 F.3d 264, 273 (2d Cir. 2006))). Not incidentally, jurisdiction under the
`
`collateral order doctrine to review the disentitlement ruling depends, in part, on
`
`its separateness from the merits of extraterritoriality and due process.
`
`Accordingly, we decline to exercise pendent appellate jurisdiction to
`
`review the alternative rulings on the merits.7
`
`
`7 We have no need to decide the correctness of the government’s assertion that
`we can never exercise pendent jurisdiction in a criminal case.
`22
`
`
`
`
`
`
`
`II
`
`The sole issue that we have jurisdiction to review is the application of the
`
`fugitive disentitlement doctrine. The doctrine “applies only to fugitives from
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`justice.” Finkelstein, 111 F.3d at 281. So in order to disentitle a litigant, a court
`
`must first determine that the litigant is a fugitive. The court may then exercise
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`discretion to disentitle the fugitive—but only if doing so would serve the
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`doctrine’s objectives. See id. at 280. We hold that Bescond is not a fugitive, and
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`that, even if she were, the district court abused its discretion in concluding that
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`disentitlement was justified.
`
`
`
`A.
`
`Fugitivity
`
`The issue of whether Bescond meets the definition of a “fugitive” is
`
`reviewed de novo. Collazos v. United States, 368 F.3d 190, 195 (2d Cir. 2004).
`
`The ordinary meaning of the term “fugitive” does not describe Bescond. A
`
`fugitive is “[s]omeone who flees or escapes; a refugee,” or “[a] criminal suspect
`
`or a witness in a criminal case who flees, evades, or escapes arrest, prosecution,
`
`
`
`23
`
`
`
`imprisonment, service of process, or the giving of testimony, esp[ecially] by
`
`fleeing the jurisdiction or by hiding.” BLACK’S LAW DICTIONARY (11th ed. 2019).
`
`Fugitivity implies some action by Bescond to distance herself from the
`
`United States or frustrate arrest. Bescond took no such action.
`
`As the district court recognized, Bescond is not a fugitive under either of
`
`the two categories at common law: (1) traditional fugitives and (2) constructive-
`
`flight fugitives. A traditional fugitive is “[a] person who, having committed a
`
`crime, flees from [the] jurisdiction of [the] court where [a] crime was committed
`
`or departs from his usual place of abode and conceals himself within the
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`district.” Finkelstein, 111 F.3d at 281 (alterations in original) (quoting BLACK’S
`
`LAW DICTIONARY (5th ed. 1979)). Bescond has neither fled nor concealed herself.
`
`Nor is Bescond a constructive-flight fugitive: a person “who allegedly
`
`committed crimes while in the United States but who w[as] outside the
`
`country—for whatever reason—when [she] learned that [her] arrest[] w[as]
`
`sought and who then refused to return to the United States in order to avoid
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`prosecution.” Collazos, 368 F.3d at 199. Bescond was not in the United States
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`while allegedly committing the charged conduct. See In re Hijazi, 589 F.3d at 412
`
`(The fugitive disentitlement doctrine “does not apply . . . [to a defendant who]
`
`
`
`24
`
`
`
`has never been in the country, . . . has never set foot in Illinois, and . . . owns no
`
`property in the United States.”). Nor is she refusing to return to the United
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`States to avoid prosecution; she simply remains at home, as her home country
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`permits her to do. So she does not qualify as a constructive-flig
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