Recently, In United States v. Bardakova, No. 24-2038, the Second Circuit affirmed a district court order applying the fugitive disentitlement doctrine to a Russian citizen who fled the U.S. days after meeting with FBI agents, and who refused to return to face criminal charges. Bardakova, who was indicted for conspiring to help a Russian industrial magnate evade U.S. sanctions and for lying to FBI officials, declined to travel back to the United States and instead moved, from Russia, to dismiss the charges against her. The Second Circuit (Sack, Wesley, Robinson) held that a foreign citizen who elects not to travel to the United States to face charges—even if they left before charges were filed—may nonetheless be deemed a fugitive and cannot move to dismiss the charges against him or her.
Background
In 2014, President Obama invoked the International Emergency Economic Powers Act (“IEEPA”) and issued corresponding executive orders to impose economic sanctions on certain designated Russian nationals in response to Russia’s invasion of the Crimean Peninsula in Ukraine. President Obama’s declaration and corresponding executive orders imposing economic sanctions have remained in effect since 2014. In 2018, Oleg Deripaska, a Russian industrial magnate and associate of defendant Natalia Bardakova, was designated as a Specially Designated National to whom these economic sanctions applied.
The Government alleges that Bardakova, a Russian citizen who has visited the United States in the past but has never lived here, helped Deripaska evade sanctions. The indictment alleges that Bardakova directed an intermediary to deliver gifts from Deripaska to contacts in the United States and to purchase items for Deripaska in the United States. The indictment also alleges that Bardakova arranged to rent properties in Los Angeles for Deripaska’s partner, Ekaterina Olegovna Voronina, so that Voronina could give birth to Deripaska’s children in the United States.
In 2022, Bardakova traveled to the United States, allegedly to make arrangements for Voronina to give birth to Deripaska’s second child in Los Angeles. Bardakova rented a home in Beverly Hills for hundreds of thousands of dollars and arranged for a private jet to fly Voronina from Russia to the United States. But when Voronina arrived at the Los Angeles airport, she was immediately questioned by officers from the Department of Homeland Security and ultimately denied entry into the country. When Bardakova arrived to pick up Voronina, she was met by FBI agents who questioned her about her connections with Deripaska and served her with a grand jury subpoena issued in the Southern District of New York. Bardakova agreed to turn over two cell phones rather than travel to New York to appear before the grand jury. Bardakova was not arrested nor told that she must remain in the United States, and she voluntarily returned to Russia three days after the FBI finished questioning her. She has not returned to the United States since.
Four months later, Bardakova was indicted for conspiring to violate the IEEPA and for making false statements to the FBI agents who interviewed her in Los Angeles. Through counsel, Bardakova moved to dismiss the indictment on the grounds that her alleged conduct was exempted from IEEPA or occurred abroad beyond the territorial reach of the IEEPA, and that venue in the Southern District was improper because her alleged false statements were made in California, not New York. The district court denied her motion without reaching the merits, finding that Bardakova was a fugitive and was not entitled to relief from the court. Bardakova filed an interlocutory appeal.
Fugitive Disentitlement Doctrine
The federal court system has long recognized the “fugitive disentitlement doctrine,” which grants courts the power to disentitle a criminal defendant from seeking relief when that criminal defendant chooses to flee the federal court’s jurisdiction. To invoke the doctrine, a district court must first find that the defendant is, in fact, a fugitive. Next, the district court must find that disentitling the fugitive defendant to relief would serve the doctrine’s objectives of (1) ensuring enforceability of federal court decisions; (2) penalizing those who flout the judicial process; (3) discouraging flight from justice, and (4) avoiding prejudice to the other side caused by the defendant’s escape.
Once a court determines that the fugitive disentitlement doctrine is available, the court has the discretion to disentitle the fugitive from any relief the court might be able to grant. Courts cannot try a fugitive defendant in absentia under the doctrine, but courts may, for example, dismiss an appeal of a fugitive defendant’s criminal conviction or decline to dismiss charges lodged against a fugitive.
The Second Circuit’s Decision
The Second Circuit began by independently probing its own jurisdiction to consider Bardakova’s interlocutory appeal. The panel concluded that the district court’s order disentitling Bardakova from moving to dismiss was appealable under the collateral order doctrine (because the ruling was independent from the merits of the appeal and sufficiently important to merit interlocutory review). This decision was consistent with a prior Second Circuit decision in United States v. Bescond, 24 F.4th 759, 767 (2d Cir. 2021). The panel then considered the merits of her appeal.
Turning first to the question of whether Bardakova is a fugitive, the panel concluded that she is a “constructive-flight fugitive.” A constructive-flight fugitive is a person who allegedly committed crimes in the United States, who was outside the country when she learned that her arrest was sought, and who then refused to return to the United States in order to avoid prosecution. The panel concluded that Bardakova met all three parts of this definition: she allegedly traveled to the United States to arrange for Voronina to give birth in California and allegedly made false statements to FBI agents there, she was in Russia when she learned about the indictment, and she has not returned since. The panel acknowledged the impossibility of knowing the reason for Bardakova’s refusal to return to the United States, but, applying a totality-of-the-circumstances approach, determined that Bardakova likely chose to remain outside the U.S. at least in part to avoid prosecution. It noted that before Bardakova was indicted, she traveled to the United States regularly but had not since returned. It noted her lack of cooperation with the U.S. government and her failure to offer any plausible explanation why she is unable to travel to the United States.
The panel then considered whether the district court properly exercised its discretion when it disentitled Bardakova from moving to dismiss the indictment. Applying the four-part test described above for invoking the fugitive disentitlement doctrine, the panel determined that it had because (1) the court’s orders would likely be unenforceable against Bardakova given her refusal to submit to the court’s jurisdiction; (2) Bardakova flouted the judicial process when she “promptly returned to Russia once she became aware that her conduct attracted the attention of law enforcement,” (3) disentitling Bardakova would disincentivize others from allegedly committing crimes on U.S. soil and then leaving, and (4) prejudice to the government weighs in favor of disentitlement.
Having concluded that Bardakova is a fugitive to whom the fugitive disentitlement doctrine may apply, the Second Circuit affirmed the district court’s order denying her motion to dismiss the indictment.
Commentary
The panel’s decision in Bardakova represents somewhat of an expansion of the doctrine to cover conduct largely outside of the United States that nonetheless violates U.S.-imposed economic sanctions. Four years ago, in United States v. Bescond, 24 F.4th 759 (2d Cir. 2021), the Second Circuit declined to apply the doctrine to a French citizen who allegedly participated in a scheme to manipulate the United States Dollar London Interbank Offered Rate (“USD LIBOR”) while at home in France. The Second Circuit concluded that Bescond was not a fugitive, but rather a French citizen remaining in her home country as is her right, because her own conduct took place entirely outside of the United States. Accordingly, Bescond was entitled to move to dismiss the charges against her.
In Collazos v. United States, 368 F.3d 190 (2d Cir. 2004), the Second Circuit applied the doctrine to a Colombian citizen who committed her alleged crimes while outside the United States, but it did so only because she lodged a challenge under the federal civil forfeiture statute, which expressly extends to individuals who have never set foot in the United States. In that case, the Second Circuit barred Collazos from seeking to challenge the forfeiture of her New York-based bank accounts when she refused to re-enter the United States to face federal and state money laundering charges based on conduct outside the United States because the statute she invoked extends to foreign individuals with U.S.-based assets. These decisions suggest that the doctrine is generally intended to disentitle individuals who commit crimes inside the United States (even if only in part based on the presence of U.S.-based assets), and who then flee or refuse to reenter the United States to face charges.
Here, the Circuit went in a somewhat a different direction based on the fact that the indictment against Bardakova alleged some U.S.-based conduct—that Bardakova traveled to the United States more than once to assist a Specially Designated National to whom sanctions applied, and lied to FBI agents here. To be sure, most of the alleged conduct seems to have occurred outside of the United States. But the indictment alleged that she facilitated the delivery of gifts to Deripaska’s associates on Deripaska’s behalf, and facilitated the purchase of items in the United States for Deripaska’s personal use in Russia, while in the United States. The fact that some conduct took place in the United States, and perhaps that the conduct violated economic sanctions that inherently bar certain types of international commerce, was enough for the Circuit to deem Bardakova a constructive flight fugitive. Here, the Court may have been moved in part by the fact that a key aspect of the crime—transporting Deripaska’s wife to the United States so that the child of an SDN could claim an entitlement to U.S. citizenship—occurred in the United States and violated U.S. sanctions against Russia for its unprovoked invasion of Ukraine.
The ruling here does not prevent Bardakova from presenting her defenses to the district court if she returns to face prosecution. However, such a return would expose her to the risk of prosecution if her motion is denied. Many defendants in that position would prefer never to face these charges, even though this decision may leave someone frozen in their home country until the charges are dropped or until the defendant dies (assuming that, as here, there is no case for extradition). This aversion to facing the charges is partly due to the very long sentences produced by the U.S. legal system and the significant cost that must be incurred when engaging counsel to defend the case. That said, the fugitive disentitlement doctrine exists because without it, there would be a “heads I win, tails you lose” aspect to Bardakova’s motion: either she wins the motion and the case is dismissed, or she loses and can remain in Russia.
There also is an analogy to be drawn here to the DOJ’s recent emphasis on the prosecution of foreign nationals who committed crimes that primarily took place outside of the United States. See Harry Sandick & Jeff Kinkle, “The Global Reach of U.S. Law Enforcement,” N.Y.L.J. (Dec. 10, 2018) (https://bit.ly/3gwaV3d). While the DOJ should reflect on whether such prosecutions vindicate U.S. interests or merely impose U.S. law on foreign nationals who are engaged in conduct with little or no nexus to the United States, it seems as if once the foreign nationals are indicted, they will either have to return to face the charges if their crimes were committed at least in part in the United States, or remain abroad in perpetuity as fugitives.
At any rate, as the DOJ continues its trend of prosecuting international defendants, it will be interesting to see whether foreign criminal defendants are able to move to dismiss their indictments, as in the case of Bescond, or are disentitled from doing so, as in Bardakova.
