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10 November 2014
In the last few weeks, the US Supreme Court declined an opportunity to examine an area of significant controversy affecting non-US citizens who have been charged with crimes. The controversy is whether non-US citizens should be allowed to seek the dismissal of criminal charges if they do not physically surrender themselves to law enforcement authorities in the United States. In this case, a US district court in Southern California 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 had not travelled voluntarily to the United States and submitted himself to arrest by US 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. Kim argued that he had not fled from the United States courts at all; he simply had not uprooted his life in Seoul and travelled to the United States to face charges that he believed were not valid. Further, Kim asserted that the use of the fugitive entitlement 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 US law enforcement. Kim tried to appeal this ruling to the US Court of Appeals for the Ninth Circuit, which concluded that the District Court had not made a clear error in invoking the fugitive disentitlement doctrine. He also appealed to the Supreme Court, which simply declined to hear his case.
Although 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 will continue to affect corporate officers, attorneys 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 country 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 US courts decide legal challenges from non-US 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?
Behind this intellectual debate lie very real consequences for both non-US citizens and the Department of Justice. If the fugitive disentitlement doctrine is ultimately upheld, non-US citizens will be left with two unenviable choices. For example, if Kim refused to travel to the United States:
Because 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 defence, he will be stuck in this precarious position indefinitely into the future.
On the other hand, if Kim submitted to arrest in the United States, he would face a different set of uncomfortable and life-changing problems:
As a consequence, if a non-US citizen surrenders him or herself in the United States and voluntarily submits to arrest, there is a strong possibility that he or she will not set foot in his or her home country again for many years.
The Department of Justice 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-US citizens would simply ignore any adverse ruling on the merits. It also believes that non-US citizens have an obligation to travel to the United States to answer criminal charges, and that it is therefore appropriate to characterise the refusal to do so as constructively fleeing the jurisdiction. However, this defence is 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 US government's ability to bring criminal charges against non-US citizens for alleged violations of the Foreign Corrupt Practices Act, antitrust law, sanctions laws and other extraterritorial criminal statutes. Defendants who have successfully opposed extradition have the right and the incentive to bring a legal challenge, but it will also benefit defendants who are 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-US citizen chooses a plea agreement, he or she 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-US citizen could make his or her own challenge prior to arriving in the United States and deciding whether to accept a plea bargain.
A number of lower courts have confronted the validity of the fugitive disentitlement doctrine to non-US citizens and reached different conclusions. However, none of these cases has fully answered the difficult questions that surround the doctrine.
At least two courts have ruled that a non-US citizen is not a fugitive and the doctrine does not apply if he or she 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-US citizen who did not flee the jurisdiction to raise a defence.(1) 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 which justifies a right to receive a ruling in the case. Similarly, a Georgia federal court allowed a Kuwaiti company, the Public Warehousing Co, 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.(2)
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: "The 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". It added that:
"This 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."
A number of other courts, including the Los Angeles district court in Kim's case, have followed this logic in a variety of criminal and forfeiture cases.(3) None of these cases has wholly responded to the compelling arguments contrary to their positions. The courts in the Hijazi 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-US citizen accused thousands of miles from home or the strain that the fugitive disentitlement doctrine places on the ordinary understanding of the term fugitive.
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-US citizens and the US Department of Justice. 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 US government and private citizens around the world. There should not be a different set of rules for a non-US citizen simply because he or she happened to be charged in one US court versus another. The Supreme Court should decide which side should prevail.
For further information on this topic please contact Michael P Kelly at Hogan Lovells US LLP by telephone (+1 202 637 5600), fax (+1 202 637 5910) or email (firstname.lastname@example.org). The Hogan Lovells US LLP website can be accessed at www.hoganlovells.com.
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Michael P Kelly